In the Singapore context a similar approach has been adopted by the Court of Appeal in, 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. Indeed, the time may have come for the common law to shed the pretence of searching for consideration to uphold commercial contracts. The Canadian and Australian cases have moved along with the eddies of unconscionability. Slade, in a well reasoned article written not long after Solle v Butcher was decided, asserted: In general, it is submitted that there are no cases which support the proposition that in cases of unilateral mistake, V [the enforcing party] may obtain this relief where the contract is not void at law and there has been no misrepresentation. This is essentially a matter of language and intention, objectively ascertained. Not all one-sided transactions or bargains are improper. 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). It can be persuasively argued that e-mails involving transactions embraced by the Convention are only effective on reaching the recipient. In such cases, where the purchaser has readily accessible means from the very same computer screen, to ascertain through a simple search whether a mistake has taken place, the onus could be upon him to exonerate himself of imputed knowledge of the mistake. 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. [emphasis added]. Their reference to arbitraging was a nebulous fig leaf designed to legitimise their conduct in a cloak of legal and commercial respectability. Comments Published in English: [2004] 2 SLR 594; [2004] SGHC 71. 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 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. [2005] 1 SLR (R) Chwee Kin Keong v Digilandmall.com Pte Ltd 507 printers. The second issue was raised by me and touched upon contentions made by both parties in their written submissions. 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. The rules of offer and acceptance are satisfied and the parties are of one mind. 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. Caveat emptor remains a cornerstone of the law of contract and business relationships. 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. 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. Borneo United Sawmills Sdn Bhd v. MUI Continental Insurance Bhd (Marine insurance - Loss of goods - Claim for loss of goods under Marine Cargo Policy) [2009] 8 CLJ 217. The point is, there is a chasm between a clarification amendment and a new or distinct issue being raised at a later stage. Both parties displayed a considerable amount of imagination in dealing with them. The rationale for this is that a court will not sanction a contract where there is no, 150 The plaintiffs have contended that this court ought to follow the decision in, A thread runs through our contract law that effect must be given to, 152 This view has also found support in the Singapore context. If he was prepared to commit this view in writing to a larger circle of 54 friends and business associates after his communication with the second and third plaintiffs, he would certainly have shared this view with his close friends with even greater candour and detail. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. - See also Balfour v. Balfour (1919). A party may not snap at an obviously mistaken offer: McMaster. Before retiring for the night, the first plaintiff had a further discussion with the second plaintiff on how to store the laser printers they had ordered. In that sense, it is akin to ordinary posting. The first plaintiffs riposte, should such a situation come to pass, was to sue them lor. 36 The second plaintiff was the key person and pivotal in the entire chain of events. There must be consensus ad idem. 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. Desmond: 13/01/20 01:47 u make me greedy, Scorpio: 13/01/20 01:47 ok lor if you insist . Our conclusion is that it is impossible to reconcile Solle v Butcher with Bell v Lever Bros Ltd. 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. Chwee Kin Keong and others v Digilandmall.com Pte Ltd [2005] 1 SLR(R) 502; [2005] SGCA 2. The defendant programmed the software. 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. The decision of the British Columbia Court of Appeal in 25659 BC Ltd v 456795 BC Ltd (1999) 171DLR(4th) 470 at [25] to [26], is instructive: 25 The law of mistake was discussed in depth by McLachlinCJBC in First City Capital Ltd v BC Building Corp (1989), 43BLR 29 (SC). The essence of unilateral mistake is the knowledge or deemed knowledge of a mistake and though fraud may often be present it is not an essential ingredient. He sought to amend his affidavit and testified that if the references in his affidavit implied the acknowledgement of a mistake, they were formulated not by him but by his previous solicitors and were incorrect. 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. [emphasis added]. They even discussed the possible scenario of the defendant not honouring the transactions. 33 See the Singapore Court of Appeal decision of Chwee Kin Keong v Digilandmall.com Pte Ltd[2005] 1 SLR 502 (noted by Yeo, TM ' Great Peace: a distant disturbance ' (2005) 121 Law Quarterly Review 393 Google Scholar; KFK Low 'Unilateral mistake at common law and in equity' [2005] Lloyd's Maritime and Commercial Law Quarterly 423; and PW . They have taken into account both the English and Australian authorities in distilling the jurisprudence in this area. 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. 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. 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. Mistakes that negative consent do not inexorably result in contracts being declared void. Scorpio: 13/01/20 01:43 yeah man whats the original price? In-house law team, Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR(R) 502, Contract unilateral mistake Internet Contract Consensus ad Idem Meeting of the Minds Acceptance Offer Void Error. So there is a contract and therefore the defendant is liable in breach of contract. In such cases, it would be unconscionable to enforce the bargain and equity will set aside the contract, 26 I respectfully agree with the reasoning of ShawJ in. 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. These statements are not to be interpreted as a clarion call to rewrite commercial agreements because of a partys unreasonable or ignoble behaviour. Having ascertained the true market price, it would have appeared crystal clear, given the huge disparity in the pricing, that a manifest mistake had occurred. 2 Who is correct? 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. 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. He was also involved in initiating the Channel NewsAsia report (see [78] and [79] infra). 107 As the law now stands, mistakes that are not fundamental or which do not relate to an essential term do not vitiate consent. There is constant tension in our legal system to accommodate the Janus-like considerations of fairness and finality.