CISG-online is a research platform dedicated to the law and practice of the United Nations Convention on Contracts for the International Sale of Goods adopted in Vienna on 11 April 1980 (CISG), as well as related areas of international commercial law. He is currently employed as an accountant in an accounting firm, Ernst & Young. (See for example the approach in Williams v Roffey Bros & Nicholls (Contractors) Ltd [1990] 1AllER 512.) I have carefully considered the issue of costs and have noted that the defendant had, in the process of mounting a root and branch attack on the plaintiffs claim, pursued some unmeritorious contentions. Inflexible and mechanical rules lead to injustice. The number of orders he placed was nothing short of brazen. These orders were placed at a price of S$66 each, whereas the actual price was S$3,854 each. I even went to both the HP Web-Site as well as the DigilandMall Web-site to see if the prices were the same. There are, however, other sound reasons to argue against such a rule in favour of the recipient rule. The text of the e-mail further reinforces the point. Rajah J.C. in the Singapore High Court in Chwee Kin Keong v. Digilandmall.com Pte. The transcript states that the third and the fifth plaintiffs saw a great opportunity and grabbed it. 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. In a physical sale, the merchant can immediately turn down an offer to purchase a product that has been advertised; otherwise he may be inundated with offers he cannot justify. They are all well-educated professionals articulate, entrepreneurial and, quite bluntly, streetwise and savvy individuals. I do not know if this is an error or whether HP will honour this purchase. The decision of V.K. Though the actual price of the laser printer was $3,854, the defendant had on 8January 2003 mistakenly posted the price at $66.00 on its websites. Indeed, upon re-examination, he attempted to distance himself from the portion of his affidavit suggesting that the possibility of a genuine mistake had crossed his mind after the first transaction. The following excerpts are particularly relevant: Desmond: 13/01/20 01:17 go hp online now. 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!! He was amicus curiae to the Court of Appeal of Singapore in the case of Chwee Kin Keong & Ors v Digilandmall.com Pte Ltd, the leading Singapore case on unilateral mistake in the digital environment. The defendant even had its terms and conditions posted on its website. David Baxter Edward Thomas and Peter Sandford Gander v BPE Solicitors (a firm) [2010] EWHC 306 (Ch) Dunlop v Higgins (1848) 1 HLC 381. 119 It is apparent from this overview that the Canadian courts have integrated through their equitable jurisdiction the concept of common law mistake within the rubric of unconscionability. 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. Desmond: 13/01/20 01:33 how many u intend to get? Quite apart from this singularly precise timing, his exchange with Ms Toh is noteworthy for the following reason: when he told her about the various concluded purchases of the laser printers, she immediately thought it was a mistake and that HP would not honour the contracts. 109 This cautious statement by Chitty needs to be carefully reconsidered in the context of recent developments in this area of law. He is described by his counsel in submissions as a prudent and careful person. The quintessential approach of the law is to preserve rather than to undermine contracts. He graduated from NTU as a bachelor of business studies, specialising in financial analysis. The defendant also sells HP products on its own website at http://www.digiland.com (the Digilandmall website). He was also involved in initiating the Channel NewsAsia report (see [78] and [79], 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. 61 The fifth plaintiff placed an order for 100 laser printers at about 3.51am. 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. Their reference to arbitraging was a nebulous fig leaf designed to legitimise their conduct in a cloak of legal and commercial respectability. 7 At about 3.36pm, Samuel Teo, an employee of DIL, inadvertently uploaded the contents of the training template onto the Digiland commerce website operated by DIL, in place of the test website allocated for the training. They have taken into account both the English and Australian authorities in distilling the jurisprudence in this area. This could account for the substantial number of Canadian cases in this area of the law. They are not mechanical rules to be applied in a vacuum, devoid of a contextual setting. Not all one-sided transactions or bargains are improper. It is pertinent to note that she placed orders for 32 laser printers including 20 units she ordered on behalf of her sister. Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. To confine this exception to instances of fraud would make the concept of unilateral mistake redundant. Date of Verdicts: 12 April 2004, 13 January 2005. Their conduct in pursuing their claims cannot by any stretch of the imagination be characterised as having the slightest colour of being legitimate regardless of whether the subjective or objective theories are applied and whether common law or equity is applied in adjudicating this matter. Certainty in commercial transactions should not be trifled with, as this will inevitably affect how commercial and business exchanges are respected and effected. Homestead Assets Sdn Bhd v. Contramec . 69 The sixth plaintiff was awakened by his brother, the third plaintiff, at about 3.00am. Needless to say, this goes to the very heart of the claims sustainability. He was opportunistic in effecting his purchases, active in co-ordinating with the other plaintiffs on the eventful morning, and economical with the truth in his evidence. They then argue that as equitable defences have not been pleaded, the court has no alternative but to allow the claim. It can be noted, however, that while s15 of the ETA appears to be inclined in favour of the receipt rule, commentaries indicate that it is not intended to affect substantive law. 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. Consideration was less than executory and non-existent. It would be fair to say that such a person should not have any legitimate expectation that the contract in question will be either respected or sanctioned by court. Chwee Kin Keong v Digilandmall.com Pte Ltd,( [2005]SGCA 2 ) . While it is possible that the reporters could have exercised some latitude in penning the reports, they would in essence be conveying, at the very least, summaries and impressions of their interviews with the second, third and fifth plaintiffs. The rigour in limiting this scope is also critical to protect innocent third party rights that may have been acquired directly or indirectly. There is however much to be said in favour of rationalising the law of mistake under a single doctrine incorporating the best elements of common law and equity. This was not noticed by the company until over 4,000 printers were ordered. He appeared distinctly uncomfortable during several phases of his cross-examination and his answers on crucial points were evasive and often vague.. His evidence in relation to the level and nature of communications he had with the second and third plaintiffs on the morning in question lacked candour. Similar works. He claimed he wanted to find out how much profit he could make. 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. The brief will discuss whether a tort of invasion of privacy should be developed by the courts. Loose language may result in inadvertently establishing contractual liability to a much wider range of purchasers than resources permit. When pressed why he asked MsToh to do this research, the fifth plaintiffs response was unsatisfactory. 89 In the circumstances, I had little hesitation in allowing the amendments sought by the defendant. The amounts ordered and the hurried and hasty manner in which the orders were executed are of cardinal importance. The fact that it may have been negligent is not a relevant factor in these proceedings. The contract stands according to the natural meaning of the words used. After placing his second order, he admitted making further searches on the Internet to fortify my view that the price of the $66 per printer was not a mistake He was also the only plaintiff who placed an order on the Digilandmall website. Scorpio: 13/01/20 01:17 what hp online?? 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. The recipient rule appears to be the logical default rule. 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. They were selling a HP laser printer and an employee accidently made a mistake as to the price of the printer on their website. 130 It can be persuasively argued that given (a)the historical pedigree of the cases, (b)the dictates of certainty and predictability in the business community and (c)the general acceptance of the existence of distinct common law rules, it is preferable not to conflate these concepts. (See for example the approach in, 142 The plaintiffs were bound by personal relationships as well as past and present common commercial interests. I found his entire evidence relating to his communication with the first and other plaintiffs unsatisfactory and in many aspects incredulous. If stock of a product has been exhausted, a prospective purchaser cannot sue for specific performance or damages as he has merely made an offer that has not been accepted by the merchant. Desmond: 13/01/20 01:44 if they dont honor it Scorpio: 13/01/20 01:45 sell me one lah name your price ;-) sue them lor , Desmond: 13/01/20 01:45 I think they will give vouchers or special deals. This was summarily resolved. He said he had by then discovered from his Internet searches that the price of the laser printer was in the region of $3,000. Theoretically the supply of information is limitless. Others do not. Before dealing with the point of real substance, it is appropriate to briefly deal with two of the less meritorious contentions advanced. Chwee Kin K eong and others . In light of this, the parties did not address me on the issue of when the contract was formed, though this appears to be a relevant issue depending on which rule is adopted. 2 [2004] 2 SLR 594 ("the Digilandmall case") (The decision was very recently affirmed by the Singapore Court of Appeal in Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] SGCA 2, albeit on somewhat different grounds and where the focus was on the law of unilateral mistake rather than formation of contract.)]. Scorpio: 13/01/20 01:43 yeah man whats the original price? Chwee Kin Keong v Digilandmall.com Pte Ltd. Case Nos: Suit 202/2003/E (for the first instance), CA/30/2004 (for the appeal) in the High Court of Singapore (at first instance), Singapore Court of Appeal. If this rule applies to international sales, is it sensible to have a different rule for domestic sales? 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. Daniel was previously a partner and head of the technology practice at Messrs Rajah & Tann. If the offeree knows that the offeror does not intend the terms of the offer to be those that the natural meaning of the words would suggest, he cannot, by purporting to accept the offer, bind the offeror to a contract: Hartog v Colin & Shields [1939] 3All ER 566; Smith v Hughes (1871) LR6 QB 597. Though both of them admit to having had discussions about the website terms and conditions governing the purchases, they deny that there was any discussion between them on even the possibility of an error having taken place. 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, 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. They are all well-educated professionals articulate, entrepreneurial and, quite bluntly, streetwise and savvy individuals. , In unilateral mistake, only one of the parties is mistaken. However, not all principles will or can apply in the same manner that they apply to traditional paper-based and oral contracts. 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. Chwee Kin Keong vs Digilandmall.com This gives their courts a broad and elastic jurisdiction to deal with commercially inappropriate behaviour. The decision ofV.K. Where common mistake is pleaded, the presence of agreement is admitted. Their He also participates in multi-level marketing of Bel-Air aromatherapy products. [The Myth of Mistake in the English Law of Contract (1954) 70LQR 385 at 396]. He classifies mistake in the following manner at 386: If attention is fixed merely on the factual situations, there are three possible types of mistake: common, mutual and unilateral. 84 It is axiomatic that a court will generally be cautious if not reluctant to effect any amendments once the hearing has commenced; even more so once the evidential phase of the proceedings has been completed. This is approved in a Singaporean case, Chwee Kin Keong v Digilandmall.com Pte Ltd . That is sufficient in these circumstances. Vincent. Thus, while the idea of snapping up may well apply in cases one side is aware of the other sides error, I do not think it can be applied literally in the constructive knowledge cases. Scorpio: 13/01/20 01:25 ok but how come got such a good deal? He is currently self-employed and is intimately involved in the multi-level marketing sales of aromatherapy products under the Bel-Air label. 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. His girlfriend, Tan Cheng Peng, is also a director and shareholder of the company in which he has a stakeholding with the first and second plaintiffs. Because it was simply a matter of time before the error would inevitably be noticed and the pricing inevitably corrected. Rajah J.C. in the Singapore High Court in Chwee Kin Keong v. Digilandmall.com Pte. The essential point remains: will prejudice be caused and/or are any policy considerations called into play. Suggested Citation: Seng, Daniel Kiat Boon, Quoine Pte Ltd v B2C2 Ltd: A Commentary (June 2020). Despite their familial relationship, the legal relationship between the two of them was that of agent and principal. The pleadings, in such instances, merely formalise what is already before the court. It has been pithily said that the rules of procedure should be viewed as a handmaiden and not a mistress, to be slavishly followed. The case went before both the High Court and the Court of Appeal. This can be before or during the trial, or after judgment or on appeal. The first and fifth plaintiffs ordered exactly a hundred laser printers each. Secondly, widening the scope of mistake, unilateral or otherwise, under the rubric of equitable mistake will, with its malleability, only encourage uncertainty and litigation. This has clearly caused much confusion in the common law jurisdictions. In short, where does the justice reside? 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. Nor should parties regard pleadings as assuming an amoeba-like nature, susceptible to constant reshaping. Where either mutual or unilateral mistake is pleaded, the very existence of agreement is denied. In evidence he explained his conduct in the following manner: I felt that I had done all that was conceivably within my means to ensure that the Price was not a mistake. There was a promise to pay made by the plaintiffs in exchange for the delivery of the requisite laser printers. 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 turn, the ICQ chat session involving the first plaintiff and the respective plaintiffs exchange of e-mails played a significant role in undermining their credibility and claims. Rather, in my opinion, constructive knowledge alone will suffice to invoke equitys conscience.
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