The Canadian and Australian cases have moved along with the eddies of unconscionability. 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. He is currently a supervisor in the taxation department of an international accounting firm, Deloitte & Touche, specialising in corporate taxation services. The modern approach in contract law requires very little to find the existence of consideration. This is to be contrasted with: Hare, Inequitable Mistake (2003) 62CLJ 29, Chandler et al, Common Mistake: Theoretical Justification and Remedial Inflexibility [2004] JBL 34. Before dealing with the point of real substance, it is appropriate to briefly deal with two of the less meritorious contentions advanced. Scorpio: 13/01/20 01:43 yeah man whats the original price? Errors may incur wholly unexpected, and sometimes untoward, consequences as these proceedings so amply demonstrate. There is no larger noble principle, such as the sanctity of contracts, to be observed or protected in these proceedings. After all, what would he do with 100 obsolete commercial laser printers? Prejudice is to be viewed broadly to encompass any injustice and embraces both procedural and substantive notions; (d) recognising that while a costs award against the party seeking late amendments can frequently alleviate any inconvenience caused, this may not always be appropriate; (e) taking into account policy considerations that require finality in proceedings and proper time management of the courts resources and scheduling. 29 The first plaintiff struck me as an opportunistic entrepreneur. While this is the general principle for shop displays, it is open to a merchant to offer by way of an advertisement the mechanics of a unilateral or bilateral contract. It was the defendants computer system. Pages 74 Ratings 100% (5) 5 out of 5 people found this document helpful; 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. Again he attempted to minimise the impact of these observations by saying his subsequent searches erased all such doubts. Failure to do so could also result in calamitous repercussions. 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. The law of mistake has generated its own genre of mistakes and obfuscation. 34 He also visited the Digilandmall website to familiarise himself with their standard terms and conditions. This can result from human interphasing, machine error or a combination of such factors. This was not noticed by the company until over 4,000 printers were ordered. Scorpio: 13/01/20 01:25 ok but how come got such a good deal? 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. It appears to suggest that even if an offer is snapped up, the contract is not void. Others do not. 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 notation in the checkout-order confirmation further confirmed that the defendants concern was with the delivery time rather than with qualifying its obligation by reference to stock availability as a condition precedent. COOKE v OXLEY (1790) 3 T. R. 653. 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. Chwee Kin Keong v Digilandmall Pte Ltd The defendant, Digilandmall.com Pte Ltd, were an online IT company that sold related software and hardware from Singapore. This gives their courts a broad and elastic jurisdiction to deal with commercially inappropriate behaviour. 147 It is improper for a party who knows, believes or ought, objectively speaking, to have known of a manifest error to seek commercial benefit from such an error. It had consciously not inserted any limits to the number of products a buyer could purchase again, quite clearly, to solicit more business. The first, second and third plaintiffs have been friends for a long time and are bound by common business interests. 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). 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. There are two types of orders relevant: market orders and limit orders. An e-mail, while bearing some similarity to a postal communication, is in some aspects fundamentally different. [2005] 1 SLR (R) Chwee Kin Keong v Digilandmall.com Pte Ltd 507 printers. The contract stands according to the natural meaning of the words used. He tried to convey the impression that it never struck him that a mistake in the price posting of the laser printer could have occurred. It does not purport to regulate e-commerce but attempts to facilitate the usage of e-commerce by equating the position of electronic records with that of written records, thus elevating the status of electronic signatures to that of legal signatures. 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 his initial affidavit he admitted wondering whether the price was a mistake after his first order was placed. 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. Scorpio: 13/01/20 01:24 huh?? In the final analysis, it would appear that the likely existence of an internal error in pricing was clearly within his contemplation. The rules of offer and acceptance are satisfied and the parties are of one mind. 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. They are all well-educated professionals articulate, entrepreneurial and, quite bluntly, streetwise and savvy individuals. Ltd.1 has the makings of a student's classic for several reasons: it presents a textbook . He acknowledged having had conversations with the other plaintiffs about how much money we can sell the printer and how much we can make and about storage space as well as how many units we intend to buy. He then carried out some checks on the Yahoo search engine to ascertain whether the printer model existed and whether the laser printer could be sold at more than $66. 21 The first plaintiff must have realised at the outset that he would have to explain with a certain measure of credibility the purport and significance of all his Internet communications between 1.00am and 3.00am on 13January 2003. Market orders: order to be executed immediately at the best available price. Their reference to arbitraging was a nebulous fig leaf designed to legitimise their conduct in a cloak of legal and commercial respectability. The e-mail was given a high importance priority and captioned go load it now!!. Vincent. The fourth plaintiffs single transaction with the Digilandmall website was confirmed by a similar automated response stating Successful Purchase Confirmation from Digilandmall. Landmark decision on unilateral mistake of fact in respect of the price of product listed on an online mall and the purchases made thereon . The most that the court can do in these circumstances is to refuse E [the other party, who wants the contract held void] specific performance, which lies in the discretion of the court and will probably be refused where E has been guilty of some degree of sharp practice. David Baxter Edward Thomas and Peter Sandford Gander v BPE Solicitors (a firm) [2010] EWHC 306 (Ch) Dunlop v Higgins (1848) 1 HLC 381. In Chwee Kin Keong v. Digilandmall.com Pte Ltd, one of the defendant's employees mistakenly uploaded the contents of a training template onto the defendant's website, resulting in the retail price of S$3,854 for a commercial laser printer on the website being replaced with the figure S$66. They have a common interest in bridge and this helped to cement their friendship. Different protocols may result in messages arriving in an incomprehensible form. In addition, each of the confirmatory e-mail responses states at the outset: [W]e will be calling you in the near future to deliver the products to the address shown below. Having expressed my views on consideration, I should also add for good measure that, in any event, there is ample consideration. Ltd.1 has the makings of a student's classic for several rea- 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!! Yong Pung HowCJ in, [T]he function of the court is to try as far as practical experience allows, to ensure that the, Tan Sok Ling, Malcolm Tan and Mohan Das Vijayaratnam (Tan S L and Partners) for plaintiffs; 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. The second, third, fourth and sixth plaintiffs are the only individuals who ordered more than a hundred laser printers each. 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. I granted leave to both parties to file applications to amend the pleadings. Who bears the risk of such mistakes? I have found that the plaintiffs had at all material times knowledge of or, at the very least, a real belief that an error had been made by the defendant in the price posting. Indeed, in difficult cases, the courts in several common law jurisdictions have gone to extraordinary lengths to conjure up consideration. 100 There is however another statute that ought to be taken into consideration in determining the appropriate default rule in e-commerce transactions. From time to time they communicate with each other, 4 The defendant is a company that sells information technology (IT) related products over the Internet to consumers. Unfortunately, they mistakenly offered the price at so much per pound in place of so much per piece. . Certainty in commercial transactions should not be trifled with, as this will inevitably affect how commercial and business exchanges are respected and effected. This is an inane argument. 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. 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. Unlike instances of fraud, where it is said fraud unravels the existing contract, in instances of unilateral mistake, the very existence of the contract is negatived there is no consensus. 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. 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 on what companies who had made similar Internet errors did. What amounts to snapping up is a question of degree that will incorporate a spectrum of contextual factors: what is objectively and subjectively known, the magnitude of the transaction(s), the circumstances in which the orders are placed and whether any unusual factors are apparent. The question is what is capable of displacing that apparent agreement. 132 It can be seen from this brief excursus into the law of mistake that this is an abstruse area. 68 Yeow Kinn Oei is 29 years old and the brother of the third plaintiff. The recipient rule appears to be the logical default rule. There is one important exception to this principle. A typical but not essential defining characteristic of conduct of this nature is the haste or urgency with which the non-mistaken party seeks to conclude a contract; the haste is induced by a latent anxiety that the mistaken party may learn of the error and as a result correct the error or change its mind about entering into the contract. ! with its importance set at high. 60 Prior to placing his order, he was again contacted by the second plaintiff. 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. 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 most recent and authoritative pronouncement in this area (per Lord Phillips of Worth Matravers in Shogun Finance Ltd v Hudson [2003] 3 WLR 1371 at [123]) states: 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). We are, Our conclusion is that it is impossible to reconcile, In this case we have heard full argument, which has provided what we believe has been the first opportunity in this court for a full and mature consideration of the relation between, 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, 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. When giving evidence, he struck me as cautious, taking great pains to convey the impression that his numerous online enquiries that morning were routinely carried out without any real inkling that an error had occurred. 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. While they did not invariably admit that their searches were made prior to each of the respective transactions, it was plain that they did not tell the whole truth about what they knew, how they knew it and when they knew it. 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. The web merchant, unless he qualifies his offer appropriately, by making it subject to the availability of stock or some other condition precedent, could be seen as making an offer to sell an infinite supply of goods. While commercial entities ought not to be given a licence to relax their vigilance, the policy considerations in refusing to enforce mistaken agreements militate against attaching undue weight to the carelessness involved in spawning the mistake. This could account for the substantial number of Canadian cases in this area of the law. 152 This view has also found support in the Singapore context. There were no such discussions with potential buyers. 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. 123 One view maintains that the mistaken party can either attempt to have the contract declared void at common law if the mistake is fundamental or radical, or alternatively seek a remedy in equity, which could include rescission. Though he initially denied this in cross-examination, he had to accept this when confronted with his own e-mail as irrefutable evidence. 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 . Therefore, administrative law encompasses Is the Right to Privacy Adequately Protected? This is an online dating and match-making service. (See for example the approach in, 142 The plaintiffs were bound by personal relationships as well as past and present common commercial interests. In support of the latter it might be argued that unlike a posting, e-mail communication takes place in a relatively short time frame. The plaintiffs could not coherently explain why neither they nor their lawyers had not attempted to correct the press reports at the material juncture. As the reports contradict portions of their present evidence, they have indirectly tried to cast doubt on the accuracy of the reports in so far as the reports referred to them. 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. This could account for the substantial number of Canadian cases in this area of the law. Her evidence was inconsequential and did not assist the plaintiffs. The payment mode opted for was cash on delivery. Inflexible and mechanical rules lead to injustice.