The decision ofV.K. This was also the practice in the trade. Thus, 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. In that sense, it is akin to ordinary posting. Promotions would be indicated by a P inside a yellow circle next to the product in question. 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. 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. He in effect forwarded the first plaintiffs e-mail to them. Having noted all this, I am nevertheless inclined towards the views expressed in the Great Peace Shipping case for the reasons articulated by Lord PhillipsMR. In other words, he really wanted to ascertain the true price of the laser printer. 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. This can be before or during the trial, or after judgment or on appeal. 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. Put another way, that decision seems to indicate that the effect of a unilateral mistake is only to render a contract unenforceable rather than void. In Associated Japanese Bank (International) Ltd v Credit du NordSA [1989] 1 WLR 255 at 266, Lord DenningMRs views were doubted and described as reflecting an individual opinion by SteynJ (as he then was). Articles 11 (1) Country Singapore. Lord Griffiths in, 87 It appeared to me that the extract from, 88 The fact that the amending party has been tardy or even negligent is a factor that a court can (and in some egregious cases, should) take into account but this is by no means a decisive factor (, 95 The known availability of stock could be an important distinguishing factor between a physical sale and an Internet transaction. Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR 594; [2004] SGHC 71. 96 In an Internet sale, a prospective purchaser is not able to view the physical stock available. Cases of fraud and misrepresentation, and undue influence, are all catered for under other existing and uncontentious equitable rules. Indeed he had conduct of significant phases of these proceedings on behalf of the plaintiffs. 46 He was therefore aware, even before he made his first purchase, that the actual price of the laser printer was in the region of US$2,000. 28 In any event, the first plaintiffs commercial background and business experience alone would have amply alerted him to the likelihood of the pricing being a mistake, even without his conversation with Desmond. The fact that the acceptance was automatically generated by a computer software cannot in any manner exonerate the defendant from responsibility. The credit card payments had not been processed. 79 The second, third and fifth plaintiffs tried their best to distance themselves from the quotes attributed to them. 120 The widening of jurisdiction to embrace a broad equitable jurisdiction could well encourage litigious behaviour and promote uncertainty. 67 MsToh subsequently did some research on how companies which had committed similar mistakes over the Internet handled the aftermath. These considerations take precedence over the culpability associated with causing the mistake. An e-mail, while bearing some similarity to a postal communication, is in some aspects fundamentally different. [The Myth of Mistake in the English Law of Contract (1954) 70LQR 385 at 396]. Scorpio: 13/01/20 01:33 as many as I can! 41 The second plaintiff seems to have redefined the facts to achieve his objective in these proceedings. Indeed, I am satisfied to the contrary. E-mails are processed through servers, routers and Internet service providers. A number of them have very close relationships, with some of them even sharing common business interests. The second plaintiff made an enquiry as to the terms and conditions governing purchases through the HP website while the fifth plaintiff was perusing the conditions of the Digilandmall website. Arrival can also be immaterial unless a recipient accesses the e-mail, but in this respect e-mail does not really differ from mail that has to be opened. The goods are not on offer but are said to be an invitation to treat. It takes the view that there is no jurisdiction in equity to rescind a contract that is valid at common law, on the basis of mistake. Not all one-sided transactions or bargains are improper. 125 The principal source of this view has been Lord DenningMR. 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. One of the few cases on electronic contract formation in Singapore was Chwee Kin Keong v Digilandmall. Once again, however, this does not deprive E of his legal remedies; nor does it avail V if he wishes to recover property which he may have transferred under the contract. 132 It can be seen from this brief excursus into the law of mistake that this is an abstruse area. It is an important subject for the future development of English contract law. . 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. 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. I must add that I did not really think this was necessary and subsequent events confirmed my perception. In support of the latter it might be argued that unlike a posting, e-mail communication takes place in a relatively short time frame. 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!! 152 This view has also found support in the Singapore context. 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. It has been pithily said that the rules of procedure should be viewed as a handmaiden and not a mistress, to be slavishly followed. Despite the general views expressed in Taylor v Johnson (1983) 151CLR 422 on equitable mistake, it seems to be generally accepted in Australia as well, that this class of cases requires special mention and consideration. I note that Chitty at para5-089, fn25 sagely opines that Taylor v Johnson does not represent English law, at least, where the other party knows that a mistake has been made. A contract will not be concluded unless the parties are agreed as to its material terms. 118 The Canadian courts have been the most active common law courts explicating and developing this area of the law. Failure to do so could also result in calamitous repercussions. Ltd.1 has the makings of a student's classic for several reasons: it presents a textbook example of offer and acceptance; it is set in the context of internet contracting; it involves the use in evidence of email, instantaneous messaging, and short messaging system (SMS); and it . 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. The leading Canadian decision in this area is the case of McMaster University v Wilchar Construction Ltd (1971) 22DLR(3d) 9 which, incidentally, was cited with approval by the Australian High Court in Taylor v Johnson. Case Summary 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. Chwee Kin Keong and Others v Digilandmall.com Pte Ltd [2005] SGCA 2 Civil Procedure Costs , Civil Procedure Pleadings , Contract Mistake Decision Date: 13 Jan 2005 . 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. The law will have to organically adapt itself to respond to new challenges without compromising on certainty and fairness. The first and fifth plaintiffs ordered exactly a hundred laser printers each. There must be consensus ad idem. Placing an advertisement on the Internet is essentially advertising or holding out to the world at large. Is this a case of poetic justice? The relevant text reads: WHILE surfing the Net at about 2am on Monday, MrTan Wei Teck stumbled upon an offer he could not believe $66 for a Hewlett Packard laserjet printer that normally sells for $3,854 before GST. Similar works. Notwithstanding occasional failure, most e-mails arrive sooner rather than later. I found his entire evidence relating to his communication with the first and other plaintiffs unsatisfactory and in many aspects incredulous. 60 Prior to placing his order, he was again contacted by the second plaintiff. His communications with the fifth plaintiff, a lawyer, on the efficacy of the terms and conditions also lead to the ineluctable conclusion that he harboured anxieties whether this astoundingly good deal would be honoured when the error was discovered. There could be different considerations. 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. June 16, 2022; Posted by why do chavs wear tracksuits; 16 . Kin Keong v Digilandmall.com Pte Ltd [2004 . He made Internet search enquiries as to whether the printer model existed and at what price it could be resold. The following excerpt is particularly significant and compelling: 23 The subsequent exchange further clarifies that the first plaintiff was fully conscious of the potential profit element arising from the purchase of a substantial number of the laser printers. The law of agency and that pertaining to the formation of contracts are expressly recognised in s13(8) of the ETA as continuing to apply to electronic transactions. Slade, in a well reasoned article written not long after, 128 The most significant judicial pronouncement supporting this view emanates from the recent English Court of Appeal in, Thus the premise of the equitys intrusion into the effects of the common law is that the common law rule in question is seen in the particular case to work injustice, and for some reason the common law cannot cure itself. This has clearly caused much confusion in the common law jurisdictions. The price for equitable justice is uncertainty. 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. The elements of an offer and acceptance are, 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. 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 purpose of the amendments was merely to regularise the pleadings and indeed they went no further than to summarise evidence and submissions that had already been raised. In submissions, his counsel attempted to play down the significance of both this conversation as well as the mass e-mail. Clout issue 43. Transactions over websites are almost invariably instantaneous and/or interactive. As a lawyer, he appears to have been indispensable in the plaintiffs attempts to hold the defendant to the bargain. Given that he left everything in the third plaintiffs hands, his legal position is, to that extent, identical to the third plaintiffs. 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. The question is what is capable of displacing that apparent agreement. 92 The Electronics Transaction Act (Cap88, 1999Rev Ed) (ETA) places Internet contractual dealings on a firmer footing. 139 Next, the defendant contends that no consideration passed from the plaintiffs to them. Media reports after the discovery of the mistake. The quintessential approach of the law is to preserve rather than to undermine contracts. The other knows, or must be taken to know, of his mistake. Caveat emptor remains a cornerstone of the law of contract and business relationships. Following closely to the Singapore High Court in Chwee Kin Keong & Others v Digilandmall.com Pte Ltd [2004] 2 SLR 594 as a precedent with similar context, the court would most likely try to determine if there is an existence of a contract or if an agreement has been reached in the first place, so we refer to Lord Phillips in Shogun Finance Ltd v This case is a paradigm example of an error on the human side. 4, 1971, p. 331. It is asserted that since mistake had not been pleaded as an equitable defence, equity cannot be invoked by the defendant. They assumed that to be the position. 27-30 January; 2-6, 9 February; 13 March; 12 April 2004 . 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. 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. Not all one-sided transactions or bargains are improper. Desmond: 13/01/20 01:24 just ordered 3 colour lazer printer for S$66.00 each. The point is, there is a chasm between a clarification amendment and a new or distinct issue being raised at a later stage. He offered to buy a laser printer from Desmond at double the price, that is $132. 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. Having pointed out 6 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 .
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