SOME THEMES AND THOUGHTS

• Citation: (2005) 17 SAcLJ 141
• Date: 01 December 2005
• Author: Michael P FURMSTON TD, MA, BCL, LLM; Bencher of Gray’s Inn; Emeritus Professor and Senior Research Fellow, University of Bristol
• Published date: 01 December 2005

1 It has been a great pleasure, and indeed honour, to be asked to assist in the production of this special contract-based issue of the Singapore Academy of Law Journal. In the process some ideas have occurred to me which I would like to share with readers.

I. Diversity and unity

2 It is clear that Singapore has now reached the stage which Australia and Canada reached some 40 years ago of wanting to decide for itself what the correct answer is. This desire is not inconsistent with wanting to know what the English answer is. In any case, within a common law system, courts are to a significant degree at the mercy of litigants. If a question does not come before the court, the court cannot decide it. So when the High Court of Australia decided McRae v Commonwealth Disposals Commission1 it was still religiously following decisions of the House of Lords but there was no relevant decision of the House of Lords to follow. New, interesting and difficult questions may arise in any jurisdiction.

3 A striking example is the decision of the Court of Appeal in the Digilandmall case,2 which presented an old problem in a dramatic 21st century setting. The facts are of a kind which teachers find difficult to resist — indeed I have already used them in a lecture in England. I dare to suggest that few common law courts would reach a different conclusion, particularly in the light of the Court of Appeal’s robust views on the plaintiffs’ state of mind.

4 It is tempting to consider what the position would (or indeed should) have been if the plaintiffs’ protestations that they believed the prices stated on the Internet to be the real prices were to be believed. I shall say a little more about this later on. Let me pose instead a different

question. What would the result have been if the sellers had accepted that there was a contract and sought rectification to the real price? The most recent English authority3 holds that in an application for rectification, a combination of sharp practice and constructive knowledge of the mistake is sufficient. Of course for the plaintiffs to be forced to buy a thousand printers at over $3,000 each would have been a disaster for them. Presumably, rectification being an equitable remedy, the court must have some degree of discretion but this does not provide an entirely satisfactory answer.

5 In a system of independent common law jurisdictions, it is inevitable that over time, some questions will receive different answers in different jurisdictions. This is the situation within the US where contract law is primarily a matter for the states. There are undoubtedly issues on which different answers are given by different states though I doubt if there are any on which 50 different answers are given.4 This does not prevent authors writing books which purport to set out the American law of contract or law schools from teaching a universal system. The Harvard Law School does not teach the Massachusetts law of contract.

6 Commonwealth common law countries have gone in a somewhat different direction. There are certainly books which set out the Australian or Canadian or New Zealand or Singapore and Malaysian law of contract, and courses taught in universities in these countries have a significant geographical focus.

7 Nevertheless — and this is why this section is headed diversity and unity — where different rules are adopted, it is hard to find geographically relevant reasons for the difference. It might be that English courts held that actual knowledge was essential for a contract to be void for unilateral mistake and that Singapore courts held that in some circumstances constructive knowledge would suffice, but this would be because different judges took different views of the best rule and not because of differences in the weather or the state of education or the business climate or whatever. As far as I can see, the underlying policy reasons...