In principle, there is no difference between amending particulars and amending say, a cause of action, defence or any other part of substance in a pleading. The modern approach in contract law requires very little to find the existence of consideration. The plaintiffs were not being candid when they portrayed very limited exchanges between themselves, dealing allegedly with only the profits to be made and their ability to resell the laser printers. 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. 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. After the defendant intimated that it would not be delivering the laser printer, he sent an e-mail excoriating it, asserting, I felt that I had done all that was conceivably within my means to ensure that the Price was. The law ought to take a practical approach in dealing with such cases if it appears that by exercising reasonable care the true facts ought to be known. 90 After leave was granted to amend the defence, each of the plaintiffs filed a further short affidavit refuting knowledge of the mistake relating to pricing. 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. 67 MsToh subsequently did some research on how companies which had committed similar mistakes over the Internet handled the aftermath. This is a case about predatory pack hunting. They assert that spending only $105,996 to procure laser printers with an actual market value of $6,189,524 is wholly irrelevant; they are entitled to a good bargain. Any information contained in this case summary does not constitute legal advice and should be treated as educational content only. Nor is it disputed that Samuel Teo, or any of the other employees of the defendant, was unaware at all material times of the dramatic chain of events so unwittingly initiated by the former. The most recent and authoritative pronouncement in this area (. Media reports after the discovery of the mistake. The bites, however, may taste quite different and cause different sensations. The pleadings, in such instances, merely formalise what is already before the court. The same view is echoed in Halsburys Laws of Singapore vol7 (Butterworths Asia, 2000) at [80.164]. It appears to suggest that even if an offer is snapped up, the contract is not void. Clout issue 43. 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!! 19 Later in the morning, at about 4.15am, the fourth plaintiff sent the following e-mail to the first plaintiff, copied to the second plaintiff only: Subject: Re: IMPT HP Colour LaserJet going at only $66!! In a, WHILE surfing the Net at about 2am on Monday, MrTan Wei Teck stumbled upon an offer, 82 The plaintiffs strenuously opposed the defendants amendments principally on the ground it was made at a late juncture. As a lawyer, he appears to have been indispensable in the plaintiffs attempts to hold the defendant to the bargain. The issue in this case was whether the pricing was a mistake and if the contract would be fulfilled. The amounts ordered and the hurried and hasty manner in which the orders were executed are of cardinal importance. I note that there have been powerful arguments made to the contrary. One reason for this is the eternal tension faced by courts and judges alike in seeking a just equilibrium between commercial certainty and justice in a particular case. 15 Early on the morning of 13January 2003 at about 1.17am, the first plaintiff received a message from a friend, Desmond Tan (Desmond), through an Internet chatlink. 76 On Monday, 13January 2003, at about 9.15am, an employee of the defendant received a call from a prospective customer inquiring whether the defendant was aware of the posted price of $66 for the laser printers on the HP website. Claiming he was in a light-hearted kind of mood during his ICQ (acronym for I-Seek-You) conversation with Desmond, he insisted that this conversation should be taken neither seriously nor literally. 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. In support of the latter it might be argued that unlike a posting, e-mail communication takes place in a relatively short time frame. Ltd. has the makings of a student's classic for several reasons, including: 1. He opted to pay for all his purchases by cash on delivery. 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. Desmond: 13/01/20 01:41 u want it for profit or personal use? 327. The payment mode selected by the third plaintiff was cash on delivery. Errors may incur wholly unexpected, and sometimes untoward, consequences as these proceedings so amply demonstrate. ThompsonJ of the Ontario High Court applied Hartog v Colin & Shields ([115] supra) and held that the parties were not ad idem and found that no contract had been formed. The prospective buyer has to make an offer to purchase which is then accepted by the merchant. They contended that the entire ICQ conversation, infused with such a jocular tone, should be disregarded. 10 News of the rather extraordinary laser printer pricing began to spread like wildfire within the local Internet community. The other school of thought views the approach outlined earlier with considerable scepticism. Notwithstanding some real differences with posting, it could be argued cogently that the postal rule should apply to e-mail acceptances; in other words, that the acceptance is made the instant the offer is sent. Before dealing with the point of real substance, it is appropriate to briefly deal with two of the less meritorious contentions advanced. 111 In Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR(R) 502 ("Chwee Kin Keong"), this court said at [101]: Under O 20 r 5(1) of the Rules of Court (Cap 322, R 5, 2004 Rev Ed), the court may grant leave to amend a pleading at any stage of the proceedings. 30th Sep 2021 Who bears the risk of such mistakes? The first, second and third plaintiffs have been friends for a long time and are bound by common business interests. Chwee Kin Keong and Others v Digilandmall.com Pte Ltd [2004] 2 SLR 594; [2004] SGHC 71 Suit No: Suit 202/2003/E Decision Date: 12 Apr 2004 Court: High Court Coram: V K Rajah JC Counsel: Tan Sok Ling, Malcolm Tan and Mohan Das Vijayaratnam (Tan S L and Partners) for plaintiffs, Philip Fong Yeng Fatt and Doris Chia Ming Lai (Harry Elias This is a matter perhaps best left to law reform rather than to incremental judge-made law which may sow the seeds of confusion and harvest the returns of uncertainty. Examples of such mistakes would include (a)human error (b)programming of software errors and (c)transmission problems in the communication systems. 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. In common mistake, both parties make the same mistake. The programme trigger on that website automatically and instantaneously initiated the insertion of similar contents onto all three websites. chwee kin keong v digilandmall high court. The case involved the sale of printers by the defendant at a price of S$66. This was summarily resolved. 113 The English Court of Appeal in Commission for the New Towns v Cooper (Great Britain) Ltd [1995] Ch 259, a case of common mistake, imported the concept of Nelsonian knowledge and applied the framework of various categories of knowledge outlined by Peter GibsonJ in Baden v Societe Generale pour Favoriser le Developpement du Commerce et de lIndustrie en FranceSA [1993] 1 WLR 509. There is no larger noble principle, such as the sanctity of contracts, to be observed or protected in these proceedings. 111 This approach appears to have been endorsed by Judith PrakashJ in Ho Seng Lee Construction Pte Ltd v Nian Chuan Construction Pte Ltd [2001] 4 SLR 407 at [84] where it was also accepted that: The test is an objective one based on what a reasonable person would have known in similar circumstances. 4 The defendant is a company that sells information technology (IT) related products over the Internet to consumers. The court has to be astute and adopt a pragmatic and judicious stance in resolving such issues. 91 There is no real conundrum as to whether contractual principles apply to Internet contracts. A contract will not be concluded unless the parties are agreed as to its material terms. This is without basis. 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. In doing so, they appear to have also conflated equitable and common law concepts. In addition to the law of (especially, unilateral) mistake, issues relating to the formation of a contract will be considered (including the law relating to offer and . In terms of chronological sequence, the initial page accessed was the shopping cart, followed by checkout-order particulars, checkout-order confirmation, check-out payment details and payment whether by cash on delivery or by credit card. 129 The careful analysis of case law undertaken by that court yields a cogent and forceful argument that Lord DenningMR was plainly attempting to side-step Bell v Lever in a naked attempt to achieve equitable justice in the face of the poverty of the common law. He seemed to suggest that in a number of cases going as far back as, He somewhat muddied the authority of his observations by apparently accepting in, 126 The Australian courts appear to have relied on the views of Lord DenningMR in, 127 The attempt to conflate the concept of common law mistake and the equitable jurisdiction over mistake is understandable but highly controversial. 48 The third plaintiff annexed to his affidavit the transcript of the Channel NewsAsia report where he was quoted. 2. 36 The second plaintiff was the key person and pivotal in the entire chain of events. 150 The plaintiffs have contended that this court ought to follow the decision in Taylor v Johnson and hold that the contract is not void under common law but voidable only in equity. As with any normal contract, Internet merchants have to be cautious how they present an advertisement, since this determines whether the advertisement will be construed as an invitation to treat or a unilateral contract. The knowledge that the offer is not meant according to its literal terms simply displaces the objective theory of contract. The text of the e-mail further reinforces the point. He too affirmed from his searches that the normal price of the laser printer was in the region of US$2,000. You may find the status of your order by calling us at (phone number given) Special instructions: Please call to advise delivery date and time. When, however, the cases provoked by these factual situations are analysed, they will be seen to fall, not into three, but only two distinct legal categories. The rules of offer and acceptance are satisfied and the parties are of one mind. Taking into account the nature of the claims, the conduct of these proceedings by the plaintiffs and how the case for the plaintiffs unravelled, it would not, all things considered, be appropriate to interfere with the normal order of costs which ought to follow the result. 44 He made his first purchase of ten laser printers at about 2.42am. Transactions over websites are almost invariably instantaneous and/or interactive. [2005] 1 SLR (R) Chwee Kin Keong v Digilandmall.com Pte Ltd 507 printers. Someone referred me to the HP website which shows the price of this HP Colour LaserJet 4600 Series as S$66.00. 104 The creases over the theoretical approach to adopt in determining the existence of contracts have for some time now been decisively ironed out in favour of the objective theory. It appears that he was also in touch with the fifth plaintiff as evidenced by an e-mail sent later that morning by the fifth plaintiff to both him and the second plaintiff containing research, 52 He then called the second plaintiff on his handphone and informed him that he intended to purchase 50 laser printers. 41 The second plaintiff seems to have redefined the facts to achieve his objective in these proceedings. 47 Not content with making his own purchases, he woke up his brother and transacted 330 units on his behalf. Unilateral mistake in contracts - L'Avocat Law There are persuasive arguments against extending the litmus test of unconscionability to all mistake-type situations. He placed his first order for 50 units at about 2.58am, and his second order for another 50 units at 3.22am, again through the HP website. He is described by his counsel in submissions as a prudent and careful person. 62 Like the second plaintiff, the fifth plaintiff played a pivotal role in the events leading to these proceedings. I do not accept that there were no discussions between them on the price posting being an error. Mutual promises, by all accounts, on the basis of existing case law, more than amply constitute consideration. Case Note CONTRACT FORMATION AND MISTAKE IN CYBERSPACE (AGAIN) The There are many different shades of sharp practice or impropriety. 60 Prior to placing his order, he was again contacted by the second plaintiff. It is germane to observe that none of the cases purporting to follow Solle v Butcher [1950] 1 KB 671 have with any degree of clarity defined the parameters of equitable mistake in contradistinction to a common law mistake. He has common business interests with the first, third and fourth plaintiffs. I found his entire evidence relating to his communication with the first and other plaintiffs unsatisfactory and in many aspects incredulous. 155 The Internet has revolutionised commerce and radically altered the manner in which commercial interaction currently takes place. Mistakes that negative consent do not inexorably result in contracts being declared void. A prospective purchaser is entitled to rely on the terms of the web advertisement. 127 The attempt to conflate the concept of common law mistake and the equitable jurisdiction over mistake is understandable but highly controversial. The decision of the British Columbia Court of Appeal in, 25 The law of mistake was discussed in depth by McLachlinCJBC in. 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. This could account for the substantial number of Canadian cases in this area of the law. This can be before or during the trial, or after judgment or on appeal. 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 There cannot be any legitimate expectation of enforcement on the part of the non-mistaken party seeking to take advantage of appearances. Civil Procedure Pleadings . In a Straits Times report dated 15January 2003 captioned $66 printer error angry customers seek lawyers help, it was reported that the second plaintiff, described as a network marketer had on 13January at about 2.00am stumbled upon a offer he could not believe $66 for a Hewlett Packard laserjet printer that normally sells for $3,854 before GST. This is a disingenuous contention that desperately attempts to palliate their conduct in the subject transactions. There is no doubt that the plaintiffs acted with indecent haste in the dead of the night in placing as many orders as each of them felt their financial resources credibly permitted them to do. Desmond: 13/01/20 01:43 coz the HP laser colour printer sells for at least 3 to 4k outside, Desmond 13/01/20 01:44 from US I heard is about USD 2k, Desmond 13/01/20 01:44 its HP and Laser and Coloured. It is therefore incumbent on the web merchant to protect himself, as he has both the means to do so and knowledge relating to the availability of any product that is being marketed. - Rebutting presumption: "The question [whether or not there is a binding contract] must depend on the It seems to me that he was trying to tailor his evidence to fit neatly within the legal parameters of the plaintiffs case. Case law chwee kin keong v digilandmallcom pte ltd. School Nanyang Technological University; Course Title ACC 1301; Uploaded By saint_huimin. Unilateral Mistake at . It was held that the contract between the parties was void. A contract is normally concluded when an offer made by one party (the offeror) is accepted by the party to whom the offer has been made (the offeree). 139 Next, the defendant contends that no consideration passed from the plaintiffs to them. As a matter of fairness, allowing amendments at a late stage should usually go hand in hand with granting leave to the other party to adduce further evidence, if necessary. As part of its business, it operates a website owned by Hewlett Packard (HP) at, 16 When the first plaintiff eventually succeeded in accessing the HP website, he immediately placed an order for 100 laser printers at about, 17 Having called the second and third plaintiffs at about. Notwithstanding occasional failure, most e-mails arrive sooner rather than later. FEATURE - Law Gazette 26 I respectfully agree with the reasoning of ShawJ in Can-Dive Services Ltd v Pacific Coast Energy Corp (1995), 21CLR(2d) 39 (BCSC), where he said at 69-70 that: While I agree with what Madam Justice Mclachlin said so far as it goes, I do not believe she intended to imply that there must be a conscious taking advantage by one party of the other in all cases. I would not however invariably equate the required conduct with fraud. If coherence is to be restored to this area of our law, it can only be by declaring that there is no jurisdiction to grant rescission of a contract on the ground of common mistake where that contract is valid and enforceable on ordinary principles of contract law. [The Myth of Mistake in the English Law of Contract (1954) 70LQR 385 at 396]. 49 Tan Cheng Pengs brief evidence did not really assist the third plaintiff. com Pte Ltd30 that was primarily about unilateral mistake. When the defendants discovered this mistake on their website, they sent an email to the complainants to say they would not be fulfilling this order. 92 The Electronics Transaction Act (Cap88, 1999Rev Ed) (ETA) places Internet contractual dealings on a firmer footing. Having said that, this exception must always be prudently invoked and judiciously applied; the exiguous scope of this exception is necessary to give the commercial community confidence that commercial transactions will almost invariably be honoured when all the objective contractual indicia are satisfied. On any objective construction, the presumed intention must be that in the context of its confirmatory content, the words call to enquire in the availability portion of the contract related to the timing of the delivery rather than being subject to physical availability of the laser printer or stock. If the common law continues to take precedence, then an essential mistake would void a contract ab initio. 93 Website advertisement is in principle no different from a billboard outside a shop or an advertisement in a newspaper or periodical. 11 The single most controversial issue in these proceedings is the knowledge possessed and/or belief entertained by each of the plaintiffs when they entered into each of the transactions for the purchase of the laser printers. After the second plaintiff read out some of the terms and conditions he had found, the fifth plaintiff told him that the contract was binding upon a successful purchase order being received. 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. 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. Chwee Kin Keong and others v. Digilandmall.com Pte Ltd. [2004 - vLex 77 Soon after the defendant informed the plaintiffs that they did not intend to deliver the laser printers, the plaintiffs took their claims to the press. This was presumably to render the training more lifelike. Do you have a 2:1 degree or higher? There is therefore no pre-condition in law for a mistaken party to show an absence of carelessness to avail himself of this defence; the law precludes a person from seeking to gain an advantage improperly in such circumstances. These orders were placed at a price of S$66 each, whereas the actual price was S$3,854 each. His Internet research alone would have confirmed that. Article24 of the Convention states: For the purposes of this Part of the Convention, an offer, declaration of acceptance or any other indication of intention reaches the addressee when it is made orally to him or delivered by any other means to him personally, to his place of business or mailing address or, if he does not have a place of business or mailing address, to his habitual residence. The product descriptions in all the other pages of the respective websites, at the material time, carried a full detailed description of all advertised products. I do not accept that there were no discussions between them on the price posting being an error. Contract doctrine is substantially predicated upon achieving an ethical equilibrium between the individualistic ethic and community ethic in order to protect reasonable or legitimate expectations. The neutral citation of the case Chwee Kin Keong and others v Digilandmall.com Pte Ltd is as follows: This citation tells us that this was the 71st case in 2004 decided in the Singapore High Court. 56 He vacillated throughout his evidence between a propensity to embellish his evidence on the one hand and to hold back on the other. 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: It is not necessary to prove actual knowledge on the part of the non-mistaken party in order to ground relief, as, In summary therefore, the equitable jurisdiction of the Courts to relieve against mistake in contract comprehends situations where one party, who knows or ought to know of anothers mistake in a fundamental term, remains silent and snaps at the offer, seeking to take advantage of the others mistake. The decision of V.K. Case law Chwee Kin Keong v Digilandmallcom Pte Ltd suggests that General Rule. Other Jurisdictions. Whether the parties have reached agreement on the terms is not determined by evidence of the subjective intention of each party. At 4.15am, he sent an email to the first plaintiff, copied to the second plaintiff, with a happy emoticon following check out the prices here (see [19]. 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. He claimed that he had not asked her to do the research and that she had done it independently. CLARK, B. Court Determines if There's a Contract Existence - LawTeacher.net Soon after, the second, third and fifth plaintiffs took their claims to the media. 4, 1971, p. 331. COOTE, B. Chwee Kin Keong v Digilandmall Pte Ltd - LawTeacher.net 43 After receiving a call from the first plaintiff at about 2.00am informing him that he had found an opportunity to make money as there was an arbitrage position to be achieved for some Hewlett Packard printers, the third plaintiff duly accessed his e-mail and visited the HP website. In the eyes of Singapore law, purported contracts entered into in similar circumstances are void ab initio. 137 Furthermore, from the evidence adduced, it became clear that the defendant had intentionally put the words call to enquire instead of, say, the phrase subject to stock availability in an attempt to entice would-be purchasers to place orders with them. Litigation Singapore Lawyer, Doris Chia - David Lim & Partners LLP This is an inane argument. After the defendant intimated that it would not be delivering the laser printer, he sent an e-mail excoriating it, asserting, inter alia: Myself, and other people who have been disappointed by you decision, will definitely spread word of the companys lack of honour and integrity to everyone we know and all over the internet! 116 The term snapping up was aptly coined by JamesLJ in Tamplin v James (1880) 15ChD 215 at 221. In addition, Tan Cheng Peng, the girlfriend and business associate of the third plaintiff, filed an affidavit detailing her communications with him. 13 The first plaintiff, Chwee Kin Keong, is 29 years old. 51 The fourth plaintiff received a phone call from the second plaintiff at about 2.00am, informing him that there was money to be made through the purchase of laser printers. It should be noted that while the common law jurisdictions continue to wrestle over this vexed issue, most civil law jurisdictions lean towards the recipient rule. 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. Pginas: 93: High Court - Suit n 202 of 2003. This is not a case about bargain hunting which is a time honoured and perfectly legitimate pursuit. 105 It is not only reasonable but right that the objective appearance of a contract should not operate in favour of a party who is aware, in the eyes of the law, of the true state of affairs when, for instance, there is real misapprehension on the part of the mistaken party and when the actual reality of the situation is starkly obvious. It had consciously not inserted any limits to the number of products a buyer could purchase again, quite clearly, to solicit more business. 26 It is clear from the priority status accorded to the e-mail that the first plaintiff was sharing his knowledge of a good deal. u think this is the 1970s?? Rules and case law pertaining to amendments are premised upon achieving even-handedness in the context of an adversarial system by: (a) ensuring that the parties apprise each other and the court of the essential facts that they intend to rely on in addressing the issues in controversy or dispute; (b) requiring that an amendment should be attended to in the usual course of events, at an early stage of the proceedings, to ensure that no surprise or prejudice is inflicted on or caused to opposing parties; (c) requiring careful consideration whether any amendments sought at a late stage of the proceedings will cause any prejudice to the opposing party.