It is plain that the defendant had given careful consideration to this issue and was prepared to contract on the basis that it would be able to comply with any orders hence, there was no reference to any order being subject to stock availability. Even if it were to be held that there is now a general test of unconscionability applicable to all types of mistake, the plaintiffs contentions will not take them far. 74 Under product description on each webpage, instead of the actual description of the laser printer which in this case should have been HP9660A Color LaserJet 4600, only the numerals 55 appeared: this was the result of Samuel Teos earlier inadvertent input. Normally the contract is only concluded when the acceptance is communicated by the offeree to the offeror. The essence of snapping up lies in taking advantage of a known or perceived error in circumstances which ineluctably suggest knowledge of the error. 38 The second plaintiff came across as intelligent and resourceful. Hence the first plaintiffs cryptically worded but highly significant mass e-mail where he adverted to the fact that he did not know if the defendant would honour the contracts but in any event wished all the recipients good luck. It is asserted that since mistake had not been pleaded as an equitable defence, equity cannot be invoked by the defendant. The evidence incontrovertibly indicates that the first plaintiff himself entertained this view for the entire period he was in communication with the second and third plaintiffs. The plaintiffs also assert in their submissions that if contracts are only upheld if parties acted honourably there would be very few contracts left standing in the commercial world. Altogether different considerations may arise if a party, at a late stage, seeks through an amendment to adduce further evidence to support that same amendment. It is axiomatic that normal contractual principles apply but the contractual permutations will obviously be sometimes more complex and spread over a greater magnitude of transactions. He somewhat muddied the authority of his observations by apparently accepting in Gallie v Lee [1969] 2 Ch 17 at 33 (affirmed on appeal in Saunders v Anglia Building Society [1971] AC 1004) that in Cundy v Lindsay there was no contract at all. Alternatively, knowledge may be readily inferred from what would be regarded as commonly known or notorious facts in the context of the transaction. This contention is wholly untenable. These statements are not to be interpreted as a clarion call to rewrite commercial agreements because of a partys unreasonable or ignoble behaviour. After referring to a series of leading cases, including the often quoted decision of ThomsonJ in McMaster University v Wilchar Construction Ltd (1971), 22DLR(3d) 9 (Ont HCJ), Chief Justice McLachlin said at p37: One circumstance falling clearly within the equitable jurisdiction of the Court to relieve against mistake is that where one party, knowing of the others mistake as to the terms of an offer, remains silent and concludes a contract on the mistaken terms: Solle, supra; Belle River Community Arena v WJC Kaufman Co (1978), 20OR(2d) 447, 4 BLR 231, 87DLR(3d) 761 (CA). If this rule applies to international sales, is it sensible to have a different rule for domestic sales? To determine the profit potential, the second plaintiff had to take steps to ascertain the true market price of the laser printer which he did. 96 In an Internet sale, a prospective purchaser is not able to view the physical stock available. 50 Ow Eng Hwee, 29 years old, is another network marketing entrepreneur. The object of the exercise is to determine what each party intended, or must be deemed to have intended. If the common law continues to take precedence, then an essential mistake would void a contract ab initio. Be that as it may, the fifth plaintiff, soon after he received MsTohs research, shared the information with the second and third plaintiffs. This thread helps to rationalise the development of the common law but ought not to be viewed as supporting the existence of a general test of commercial morality tantamount to the test of unconscionability invoked by equity. It argues that the decision is both fair and economically grounded, and proposes an alternative view to that offered by classical contract law - one that sees fairness intertwined Basic principles of contract law continue to prevail in contracts made on the Internet. This is a disingenuous contention that desperately attempts to palliate their conduct in the subject transactions. 114 For good measure, I should allude that the plaintiffs in their written submissions concede that in order to establish that mistake is operative at common law, the defendant has to show in this instant case that the plaintiffs each had actual or constructive knowledge of the mistaken pricing. , In unilateral mistake, only one of the parties is mistaken. 108 Chitty on Contracts (28th Ed, 1999) vol1 observes at para5-035: It is not clear whether for the mistake to be operative it must actually be known to the other party, or whether it is enough that it ought to have been apparent to any reasonable man. He offered no plausible explanation for the series of orders which he placed while he was in communication with the other plaintiffs, other than stating audaciously that he had to buy a lot to sell a lot, to get a lot. In this case, there was no consensus ad idem or meeting of the minds between the parties, which meant that there could be no binding contract between them. The second, third, fourth and sixth plaintiffs are the only individuals who ordered more than a hundred laser printers each. It appears that it wanted to leave no stone unturned and had therefore mounted a root and branch attack on the plaintiffs claims. [emphasis added]. This could account for the substantial number of Canadian cases in this area of the law. If an offeree understands an offer in accordance with its natural meaning and accepts it, the offeror cannot be heard to say that he intended the words of his offer to have a different meaning. The pleadings, in such instances, merely formalise what is already before the court. Comments Published in English: [2004] 2 SLR 594; [2004] SGHC 71. The effect of Solle v Butcher [1950] 1 KB 671 is not to supplement or mitigate the common law: it is to say that Bell v Lever Bros Ltd was wrongly decided. Leave was also given to the plaintiffs to adduce further evidence, if they so desired. 79 The second, third and fifth plaintiffs tried their best to distance themselves from the quotes attributed to them. This has clearly caused much confusion in the common law jurisdictions. A contract will not be concluded unless the parties are agreed as to its material terms. On the issue of his actual knowledge and communications with the other plaintiffs at the material time, I found his evidence unsatisfactory. 68 Yeow Kinn Oei is 29 years old and the brother of the third plaintiff. His revelation that he did not know if this is an error or whether HP will honour this purchase, not to mention the articulation of his hope that by the time you see this email, the price is still at S$66.00, 27 The first plaintiff obviously took the view that the advertisement should be acted upon urgently. One of the few cases on electronic contract formation in Singapore was Chwee Kin Keong v Digilandmall. 3 All six plaintiffs are graduates, conversant with the usage of the Internet and its practices and endowed with more than an adequate understanding of business and commercial practices. High Court and Court of Appeal, recently, in a number of case . 33 After his first order, the second plaintiff contacted the fourth and fifth plaintiffs informing them about the laser printers. This is an inane argument. They are not mechanical rules to be applied in a vacuum, devoid of a contextual setting. Section13 of the ETA deems that a message by a partys automated computer system originates from the party itself. It is pertinent to note that she placed orders for 32 laser printers including 20 units she ordered on behalf of her sister. It is, in large measure, determined by making an objective appraisal of the exchanges between the parties. 91 There is no real conundrum as to whether contractual principles apply to Internet contracts. He holds an accounting degree from NTU. Scorpio: 13/01/20 01:42 I want at least one for personal use 2 would be good coz my gf needs one too any more than that would be a bonus ;-), Scorpio: 13/01/20 01:43 anyway, I dont mind buying over if you have frens who want to sell buy at twice the price!! The elements of an offer and acceptance are ex facie satisfied in every transaction asserted in the plaintiffs claims. While a court of law does not sit as a court of commercial morality, it cannot lose sight of this central objective of contract law. LOW, Kelvin Fatt Kin. 101 RSS Intellectual Property Office of Singapore Expand/Collapse. Normally the contract is only concluded when the acceptance is communicated by the offeree to the offeror. 16 When the first plaintiff eventually succeeded in accessing the HP website, he immediately placed an order for 100 laser printers at about 2.05am, charging the transaction to his credit card. Yong Pung HowCJ in Tribune Investment Trust Inc v Soosan Trading Co Ltd [2000] 3 SLR 405 at [40] opined: [T]he function of the court is to try as far as practical experience allows, to ensure that the reasonable expectations of honest men are not disappointed. 92 The Electronics Transaction Act (Cap88, 1999Rev Ed) (ETA) places Internet contractual dealings on a firmer footing. I am not prepared, after full consideration, to assume that the reporters misquoted the facts. The very foundations of predictability, certainty and efficacy, underpinning contractual dealings, will be undermined if the law and/or equity expands the scope of the mistake exception with alacrity or uncertainty. He appears to have been in constant communication with the second plaintiff and to have received and read the mass e-mail from the first plaintiff after he placed his first purchase order. Often the essence of good business is the use of superior knowledge. The law may not imply a condition precedent as to the availability of stock simply to bail out an Internet merchant from a bad bargain, a fortiori in the sale of information and probably services, as the same constraints as to availability and supply may not usually apply to such sales. In doing so, they appear to have also conflated equitable and common law concepts. An e-mail, while bearing some similarity to a postal communication, is in some aspects fundamentally different. Having ascertained that the laser printer was being advertised at $66, he decided to undertake further online searches through Yahoo.com and Ebay.com. Olley v Marlborough Court [1949] 1 KB 532 Omnium D'Enterprises v . Why? He seemed to suggest that in a number of cases going as far back as Cundy v Lindsay (1878) 3App Cas 459, the contracts in issue therein should be treated as only being voidable in equity: see Solle v Butcher at 692, Lewis v Averay [1972] 1 QB 198 at 207 and dicta in Magee v Pennine Insurance Co Ltd [1969] 2 QB 507 at 514 where he opined that: A common mistake, even on a most fundamental matter, does not make a contract void at law: but it makes it voidable in equity. The e-mail was given a high importance priority and captioned go load it now!!. This new template was designed to facilitate instantaneous price changes allowing them to be simultaneously reflected in the relevant Internet web pages. Though he initially denied this in cross-examination, he had to accept this when confronted with his own e-mail as irrefutable evidence. Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 stated: [T]o allow an amendment before a trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence. 133 It is however clear that the law should not take cognisance of bad bargains and misapprehension that do not affect a fundamental or essential aspect of a contractual relationship. He claims visiting, inter alia, the Epinions and Hardwarezone websites, and though it appears that there was at the material time a discussion thread on the error on the Hardwarezone website, the fourth plaintiff denied having seen this. The web page entitled checkout order confirmation had a notation stating the earliest date on which we can deliver all the products to you is based on the longest estimated time of stock availability plus the delivery lead time. 3. If anything, certain portions of the affidavits raised even more doubts about the plaintiffs credibility. Nor could he satisfactorily explain why he initially made the Internet searches to ensure the offer was genuine. This gives their courts a broad and elastic jurisdiction to deal with commercially inappropriate behaviour. The terms of the offer are clear and unambiguous and the offeree accepts the offer according to its true sense, but it must have been obvious (and known by the offeree) that the offeror did not intend to make an offer in those terms. Rajah J.C. in the Singapore High Court in Chwee Kin Keong v. Digilandmall.com Pte. China-Singapore "One Belt One Road" International Business Cases Digest Part 1 -"" () 457-463 (2020, published by the Singapore and People's Republic of China Supreme Courts . There can be no other reasonable explanation. There is no merit at all in this contention. He was also a partner in what is described as a printing business. Desmond intimated that the defendant would give vouchers or special deals as a matter of equitable compensation should it not honour the purchase orders. There is often, but not inexorably, a co-relationship between the timing when the amendment is sought and the adverse consequences for the other party. They have taken into account both the English and Australian authorities in distilling the jurisprudence in this area. The point is, there is a chasm between a clarification amendment and a new or distinct issue being raised at a later stage. Chwee Kin K eong and others . The case of Hartog v Colin & Shields [1939] 3All ER 566 is incontrovertibly the leading authority in this area. http://www.buy.hp.com.sg/hp/StandardProduct.cfm?prodid=HPC9960A. 151 The claims by the plaintiffs are audacious, opportunistic and contrived. In common mistake, both parties make the same mistake. The present article analyses the many important issues that are raised by what is probably the first case on Internet mistake - the Singapore High Court decision of Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR 594. It would be illogical to have different approaches for different product sales over the Internet. case concerning the purchase of laser printers from an online retailer, Chwee Kin Keong v Digilandmall 76 : To effect the purchase transactions on the respective websites, the plaintiffs had to navigate through several web pages. The current general approach is correctly stated in Professor Jeffrey Pinslers Singapore Court Practice 2003 (LexisNexis, 2003) at para20/5/7: An amendment may be allowed even after both parties have made their closing submissions. He was also involved in initiating the Channel NewsAsia report (see [78] and [79] infra). Thus the task of ascertaining whether the parties have reached agreement as to the terms of a contract can involve quite a complex amalgam of the objective and the subjective and involve the application of a principle that bears close comparison with the doctrine of estoppel. This is approved in a Singaporean case, Chwee Kin Keong v Digilandmall.com Pte Ltd . 66 The fifth plaintiff also gave evidence that the next morning, when he logged on his computer, he noted that a Hong Kong lawyer friend, Coral Toh, was also logged onto her computer. The CISG has currently been adopted by 95 Contracting States world-wide. Upon accessing the Digilandmall website and confirming that the printer was offered there at $66 as well, he placed a further order for 25 laser printers through that website at about 3.29am. 2. 117 It should be emphasised that this stream of authority is consistently recognised by all the major common law jurisdictions. To assert that as a rule, leave to amend particulars will be refused, is both illogical and incorrect. 25 The mass e-mail at 2.58am is cursorily dismissed by counsel for the plaintiffs as poor use of language that ought not to be taken literally in light of the early hours of the morning. Whether the parties have reached agreement on the terms is not determined by evidence of the subjective intention of each party. He also claimed to have talked to buyers in the market about reselling the laser printers and that the failure to procure the units would tarnish his reputation. This is in contrast to the English position where after several decades Hartog v Colin & Shields still remains the locus classicus. 53 He claimed that seeing the same price on the Digilandmall website confirmed his view that there had been no mistake. To confine this exception to instances of fraud would make the concept of unilateral mistake redundant. Prior to this he was an associate in the Intellectual Property and Technology Department of Allen & Gledhill. 155 The Internet has revolutionised commerce and radically altered the manner in which commercial interaction currently takes place. Just as the Law Reform (Frustrated Contracts) Act 1943 was needed to temper the effect of the common law doctrine of frustration, so there is scope for legislation to give greater flexibility to our law of mistake than the common law allows. Offer and acceptances have to reach an intended recipient to be efective. They were selling a HP laser printer and an employee accidently made a mistake as to the price of the printer on their website.. Cases 134 It is not really in issue that contracts can be effectively concluded over the Internet and that programmed computers sending out automated responses can bind the sender. It is important not to force into a Procrustean bed principles that have to be modified or discarded when considering novel aspects of the Internet. His revelation that he did not know if this is an error or whether HP will honour this purchase, not to mention the articulation of his hope that by the time you see this email, the price is still at S$66.00 coz they might change it anytime, are all compelling in reflecting his state of mind and awareness that an error had occurred.