Discussion about contracts

[vince123123]

Well, you are mistaken. Many contracts are concluded across borders and have been upheld in courts. "Net-oriented" exchanges can be capable of forming legally binding contracts - perhaps you could let me know what legal authority you rely on to say that "net-oriented" exchanges are incapable of being legally binding.

When the goods are not what has been promised, lets say in Singapore, we have the Sale of Goods Act to turn to for recourse.

For the "simple qualifier" you referred to are what is known as exclusion clauses, you may want to know that not all exclusion clauses are upheld as valid and binding. Hence it is overly superficial to say that such an exclusion clause "resolves it all".

I do not however deny, that cross border transactions bring up other legal complications, such as choice of forum, conflict of laws etc, as well as the inherent obstacles to initiating court proceedings where the defendant is located in another jurisdiction. However, the difficulty of enforcement or obtaining judgment/execution is quite far from saying that the transactions themselves are not legally binding.

sadly, nothing that is remotely legally binding; net-oriented exchanges that have actually warranted punishment seem to be of the "collect money and no show" variety - even when the goods are not what has been promised as in the case of many local online shops.. a simple qualifier on the shop website that goes along the lines of "you may not get what you see" resolves it all.

 

[night86mare]

Well, you are mistaken. Many contracts are concluded across borders and have been upheld in courts. "Net-oriented" exchanges can be capable of forming legally binding contracts - perhaps you could let me know what legal authority you rely on to say that "net-oriented" exchanges are incapable of being legally binding.

When the goods are not what has been promised, lets say in Singapore, we have the Sale of Goods Act to turn to for recourse.

For the "simple qualifier" you referred to are what is known as exclusion clauses, you may want to know that not all exclusion clauses are upheld as valid and binding. Hence it is overly superficial to say that such an exclusion clause "resolves it all".

I do not however deny, that cross border transactions bring up other legal complications, such as choice of forum, conflict of laws etc, as well as the inherent obstacles to initiating court proceedings where the defendant is located in another jurisdiction. However, the difficulty of enforcement or obtaining judgment/execution is quite far from saying that the transactions themselves are not legally binding.

bring me a case in singapore, where it could be used as a precedent for such examples:

1) seller doesn't turn up, or buyer doesn't turn up for a net transaction
2) seller doesn't give buyer the goods he had in mind

i think you'll find that you're sorely pressed; whereas there have been cases whereby people are jailed for collecting money on ebay/yahoo auctions without delivering goods, and repeatedly at that.

the problem with 1, 2 and of course, net transactions whereby mailing is used as the form of delivery, you can easily attribute isolated cases to many other factors, such as "failure of the delivery system", "failure in communication", and of course pointing out of the clause on website that goods may vary. which is why most (real) lawyers would not want to go near such cases, it is a very shaky ground where stable footing in court is not easily found.

it is fine and dandy to say that the law is there, and YES, the law can be quoted to further your case somewhat.. but whether determinations and judgements are easily passed is another thing altogether when you take the entire situation into consideration..

 

[vince123123]

It is easy to shift the burden of proof onto the next person, I can easily challenge you to bring me a case in Singapore, where it could be used as a precedent for such examples:

1) Seller doesn't turn up, or buyer doesn't turn up for a net transaction, and there is nothing that the person who turned up could do anything about it.

2) Seller doesn't give buyer the goods as described, and buyer has no recourse whatsoever.

----------------------------

In any case, I'll do better, and quote you cases that I know, and I'll wait for you to quote cases to substantiate your opinion.

1) It is trite law that when a contract is concluded, and one party does not fulfil his obligations (whether be it to deliver goods or to make payment), he is in breach of that contract. Failure to turn up can be considered as failure to meet obligations.

Do you really need me to quote you a case which supports this basic principle?

2) Chuan Hiap Seng (1979) Pte Ltd v Progress Manufacturing Pte Ltd
[1995] 2 SLR 641, which held where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description.

And you're asking me to quote Singapore cases and yet you're relying on Ebay/Yahoo cases? *weird*

That said, it is not unusual for the absence of cases on a very specific permutation of facts, but it is very usual for judges to make decisions based on analogous cases.

As for your exclusion clause, the validity of which would depend a lot on the judge's interpretation of Section 3 of the Unfair Contract Terms Act. It would be too quick to say that insertion of the clause you mentioned automatically and absolutely absolves liability (as you had done).

On top of that, Section 6 of the UCTA states that liability for failure to comply with description cannot be excluded by such an exclusion clause as far as consumers are concerned.

----------------------------

It is correct to say that the issues may not have a 100% clear answer (which legal issue does?) but your original post put it in no uncertain terms that:

"sadly, nothing that is remotely legally binding; net-oriented exchanges that have actually warranted punishment seem to be of the "collect money and no show" variety - even when the goods are not what has been promised as in the case of many local online shops.. a simple qualifier on the shop website that goes along the lines of "you may not get what you see" resolves it all."

bring me a case in singapore, where it could be used as a precedent for such examples:

1) seller doesn't turn up, or buyer doesn't turn up for a net transaction
2) seller doesn't give buyer the goods he had in mind

i think you'll find that you're sorely pressed; whereas there have been cases whereby people are jailed for collecting money on ebay/yahoo auctions without delivering goods, and repeatedly at that.

the problem with 1, 2 and of course, net transactions whereby mailing is used as the form of delivery, you can easily attribute isolated cases to many other factors, such as "failure of the delivery system", "failure in communication", and of course pointing out of the clause on website that goods may vary. which is why most (real) lawyers would not want to go near such cases, it is a very shaky ground where stable footing in court is not easily found.

it is fine and dandy to say that the law is there, and YES, the law can be quoted to further your case somewhat.. but whether determinations and judgements are easily passed is another thing altogether when you take the entire situation into consideration..

 

[night86mare]

In any case, I'll do better, and quote you cases that I know, and I'll wait for you to quote cases to substantiate your opinion.

1) It is trite law that when a contract is concluded, and one party does not fulfil his obligations (whether be it to deliver goods or to make payment), he is in breach of that contract. Failure to turn up can be considered as failure to meet obligations.

Do you really need me to quote you a case which supports this basic principle?

2) Chuan Hiap Seng (1979) Pte Ltd v Progress Manufacturing Pte Ltd
[1995] 2 SLR 641, which held where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description.

And you're asking me to quote Singapore cases and yet you're relying on Ebay/Yahoo cases? *weird*

That said, it is not unusual for the absence of cases on a very specific permutation of facts, but it is very usual for judges to make decisions based on analogous cases.

As for your exclusion clause, the validity of which would depend a lot on the judge's interpretation of Section 3 of the Unfair Contract Terms Act. It would be too quick to say that insertion of the clause you mentioned automatically and absolutely absolves liability (as you had done).

On top of that, Section 6 of the UCTA states that liability for failure to comply with description cannot be excluded by such an exclusion clause as far as consumers are concerned.

obviously, obviously not up to date with the news, a few people had been sentenced to jail/fine after not delivering goods on yahoo auctions and ebay. yahoo auctions and ebay themselves have no clear legal construct for protecting their users, only a rating system. :nono:

the cases are in SINGAPORE, but they are from yahoo auctions and ebay, if you were indeed well-versed in the ways of the law you might actually have kept up to date on this. they were published in the straits times, but never kept in online archives, and i don't keep newspapers,BUT there are mentions in various online forums, thankfully, so i spent a while digging them out.

forums discussing scammer being jailed - straits times link no longer available, but read it and you will get what is going on, this is the case i remember very clearly

some other case, but more related to piracy than anything else

you don't have to show me cases, i asked a friend reading law in oxford about this issue, and he gave me this quick, and simple answer which shows a clear difference why there is indeed a clear distinction between what i had stipulated and what you are suggesting.

i quote:

it's private litigation, so the police can't come in
no precedents i can remember, so probably not worth the time and $

well, certainly, you would trust a law student's word (a hardworking one at that, i assure you) more than yours or mine?

i had always garnered the impressions that precedents were a very important things in court of law from the limited readings i have had regarding this.

btw, some definitions from here:

Agreement

8.2.1 A contract is essentially an agreement between two or more parties, the terms of which affect their respective rights and obligations which are enforceable at law. Whether the parties have reached agreement, or a meeting of the minds, is objectively ascertained from the facts. The concepts of offer and acceptance provide in many, albeit not all, cases the starting point for analysing whether agreement has been reached.

Offer

8.2.2 An offer is a promise, or other expression of willingness, by the ‘offeror’ to be bound on certain specified terms upon the unqualified acceptance of these terms by the person to whom the offer is made (the ‘offeree&#8217. Provided the other formation elements (ie consideration and intention to create legal relations) are present, the acceptance of an offer results in a valid contract.

8.2.3 Whether any particular statement amounts to an offer depends on the intention with which it is made. An offer must be made with the intention to be bound. On the other hand, if a person is merely soliciting offers or requesting for information, without any intention to be bound, at best, he or she would be making an invitation to treat. Under the objective test, a person may be said to have made an offer if his or her statement (or conduct) induces a reasonable person to believe that the person making the offer intends to be bound by the acceptance of the alleged offer, even if that person in fact had no such intention.

Termination of Offer

8.2.4 An offer may be terminated by withdrawal at any time prior to its acceptance, provided there is communication, of the withdrawal to the offeree, whether by the offeror or through some reliable source. Rejection of an offer, which includes the making of a counter-offer or a variation of the original terms, terminates the offer. In the absence of an express stipulation as to time, an offer will lapse after a reasonable time. What this amounts to depends on the particular facts of the case. Death of the offeror, if known to the offeree, would render the offer incapable of being accepted by the offeree. Even in the absence of such knowledge, death of either party terminates any offer which has a personal element.

Acceptance

8.2.5 An offer is accepted by the unconditional and unqualified assent to its terms by the offeree. This assent may be expressed through words or conduct, but cannot be inferred from mere silence save in very exceptional circumstances.

8.2.6 As a general rule, acceptance must be communicated to the offeror, although a limited exception exists where the acceptance is sent by post and this method of communication is either expressly or impliedly authorised. This exception, known as the ‘postal acceptance rule’, stipulates that acceptance takes place at the point when the letter of acceptance is posted, whether or not it was in fact received by the offeror.

Certainty

8.2.7 Before the agreement may be enforced as a contract, its terms must be sufficiently certain. At the least, the essential terms of the agreement should be specified. Beyond this, the courts may resolve apparent vagueness or uncertainty by reference to the acts of the parties, a previous course of dealing between the parties, trade practice or to a standard of reasonableness. On occasion, statutory provision of contractual details may fill the gaps. For more on implication of terms, see Paragraphs 8.5.5 to 8.5.8 below.

Completeness

8.2.8 An incomplete agreement also cannot amount to an enforceable contract. Agreements made ‘subject to contract’ may be considered incomplete if the intention of the parties, as determined from the facts, was not to be legally bound until the execution of a formal document or until further agreement is reached.

Electronic Transactions Act

8.2.9 The Electronic Transactions Act (Cap 88, 1999 Rev Ed) (‘ETA&#8217 clarifies that, except with respect to the requirement of writing or signatures in wills, negotiable instruments, indentures, declarations of trust or powers of attorney, contracts involving immovable property and documents of title (s 4(1)), electronic records may be used in expressing an offer or acceptance of an offer in contract formation (s 11). A declaration of intent between contracting parties may also be made in the form of an electronic record (s 12). The ETA also clarifies when an electronic record may be attributed to a particular person (s 13) and how the time and place of despatch and receipt of an electronic record are to be determined (s 15).

anyways, i also quote my friend when i told him about this debate, and he laughed and said that whoever wanted to seek redress should consult a proper lawyer, instead of listening to two uninformed souls debating on the net about it.

so i'll end this, since it is not correct, and we are not versed in the law. if vince wishes to claim that he is a lawyer, then so be it, i have presented what limited knowledge i know. perhaps he will claim that his knowledge (even thoguh he may not be a lawyer) will be equivalent to that, anyone who wants to listen to it is more than welcome too, at your own risk.

 

[r32]

night86mare, if I remember correctly about vince123123, you are dealing with an actual lawyer here. Hardly the uninformed soul that your presumably lawyer friend is laughing about.

 

[vince123123]

Opening Comments

(1) It is strange that asking you to substantiate cases equates to being not up to date on the law. The same allegation can be reversed onto yourself

(2) Newspaper articles and cozycot forum messages do not qualify as "case in Singapore, where it could be used as a precedent" - you need a proper case name and case citation reference. Information from the Singapore.sg website also do not count as citable precedents. Ask your Oxford friend if you are not sure what I mean.

(3) You have not quoted any cases which substantiates either:

"sadly, nothing that is remotely legally binding; net-oriented exchanges that have actually warranted punishment seem to be of the "collect money and no show" variety - even when the goods are not what has been promised as in the case of many local online shops.. a simple qualifier on the shop website that goes along the lines of "you may not get what you see" resolves it all."

OR

"1) Seller doesn't turn up, or buyer doesn't turn up for a net transaction, and there is nothing that the person who turned up could do anything about it.

2) Seller doesn't give buyer the goods as described, and buyer has no recourse whatsoever."

The only cases you quoted (if they can be considered cases without a case name or case citation reference), do not relate to the above points you were trying to make.

Now, onto your points proper.

1. Yahoo/Ebay "cases" - I merely asked for you to quote the cases to substantiate your opinion, but you should be aware you have brought up examples which relate to subject matter not under discussion. You need to quote caess which substantiate your points in (3) above, not cases about other subject matter which do not relate to the (3). I did not ask for other cases, only those relating to points in (3).

2. Contradiction? - Now you say at your last post "you dont have to show me cases", but in post #25, you said "bring me a case in Singapore..." - which is it you want? To show you cases or not to show you cases?

3. Your Oxford Friend - Your friend was not able to quote you any precedents so I'm not sure what's the point of quoting him. As for the sentence on "private litigation" or "police", I'm not even sure why that is thrown into the mix since at no time were we discussing bringing police into this issue (not at least in my mind).

As for "you would trust a law student's word more than yours or mine?", you'd rather make your assessment on someone's statements just based on his qualifications, or what he or she actually says? If I tell you that I'm a practising lawyer with X year's experience, does it mean that you will believe my statements over your friend's? Or will you assess both statements objectively based on substance and what backed up those statements? Qualifications is only a starting point, what you actually say and how you back it up is another - which is why I never base an argument on qualifications. If you are indeed that hung up on qualifications, we can meet up for kopi to examine qualifications to reassure yourself.

4. Singapore.sg website - Certainty of terms of contract are certainly one of the prerequisites to formation of a contract. However, please read my posts again where my statements are made on the basis that a valid and binding contract has already been formed. If there is no contract, then there is no point to discuss further. I'm not sure why this new issue is being thrown into the mix. There are so many factors which can vitiate a contract.

5. Seeking a lawyer - your friend is certainly right to say that anyone who intends to seek redress should seek the assistance of a lawyer. I do however respectfully disagree with the label "uninformed soul", as I had ensured that a minimum amount of due dilligence and legal research/basis was done before making comments.

At no point have I said that they should rely on these discussions as legal advice or base their actions on these comments. As stated before, there is no need to claim qualifications, and discussion can be made on a substantive basis.

Anyone who reads internet discussions will know to rely on them at his or her own risk (same as how you can rely on singaporelaw.sg at your own risk). That in itself, should not be a bar to healthy and substantive discussions per se.

Cheers!

 

[night86mare]

night86mare, if I remember correctly about vince123123, you are dealing with an actual lawyer here. Hardly the uninformed soul that your presumably lawyer friend is laughing about.

he is not a lawyer, i don't know how you have gotten the idea, and i hope that he clarifies this

a law degree is a professional degree; just like a medical degree is, i thought i'd take the chance to clarify this with the general public.. since you would not ask for medical advice from a non-doctor if you are serious about your health; you should not be asking for legal advice from self-read self-researched people who do not really know how to interpret the law. on other matters, such as philosophy, you could seek advice without fear of any negative impact if the advice is misguiding. on health? on legal matters? those are grounds where i would want sure footing on.

i noticed that a lot of people have the impression that he is; as can be seen from the post below, i thought it is only FAIR that this impression is clarified.. it does seem as if he has admitted that he has no legal qualifications. in fact, from what i understand from most of the people i have talked to the legal profession, a responsible and professional lawyer would not dish out free advice on the internet - it leads to a lot of complications, other than possibly spoiling the market, you have other things like wannabe lawyers tagging along and emulating these actions without any due recourse if anything goes wrong (in vince's own words), which is something the legal system as a whole would not benefit from.

i am not asking him to keep quiet, we all need opinions from different members in our community, but i am more than certain that he agrees with me that a clear impression should be put through, instead of misleading uninformed people. your post is a clear example of the misconception that is deeply rooted within many people here based on his posts in the past.. admittedly it is not his fault per se, but i suspect he does get a little kick out of referred to as such, which puzzled me, since he never stood out to clarify this point.

last post here, i did not want to post on the matter any further since i do not feel myself sufficiently qualified on the matter, clearly knowing less on the subject due to a less vested interest in this area.. unlike vince, who has clearly put a lot of time and effort into reading up on law and prides himself on being more than familiar with it.. despite not having actually practised it.. but i saw this post, and i had to respond.

p.s. my friend is not a lawyer, he is a law student, and in fact, he also mentioned that i should not rely on him wholly on legal matters either, because he is not qualified.

 

[vince123123]

In all my posts to date, I have neither confirmed nor denied whether I am a lawyer or otherwise, as I have always felt that discussions should focussed towards the substance, rather than the qualifications. I'm puzzled where you got the impression that I "admitted that (I) has no legal qualifications". Just because I focussed on substance over qualifications?

As I have mentioned before, if you are so hung up over qualifications, do pm me for a kopi meeting where I can satisfy all your doubts as to qualifications - although I still stress that substance is more important. Just because someone is qualified doesn't automatically make what he say, correct, and the same applies to me and you and any other person. For one, lawyers and judges have been wrong before. What is important is what you say, not who is saying it.

For your information, lawyers are "self-read, self researched" people as well - no one spoon fees research materials to practising lawyers when he prepares for a case.

As also mentioned before, discussions on the Internet are not intended to be relied on as legal advice, and I trust that anyone who has a dispute, would not rely on internet advice per se - do your own due dilligence to find out if what people says have any basis, and those without basis, you can discount. If you need to rely on what you read in a matter of commercial importance, it would be of utmost importance to verify the information with a legal professional. This is sound advice that no one is ever disputing.

In that vein, just as you have said, will people be misled by what is said here? If so, then why are you purporting to give views on legal issues in the first place? Anyone who reads these views would know to do independent checks of his own before believing blinding - which is why I have always substantiated my views with legal references that people can check up for themselves if they want to, and not merely make unsubstantiated comments.

A responsible and professional lawyer will not dish out free advice on the internet, but since when have I ever said that my comments are "legal advice you can rely on". I have always maintained that my comments are merely discusssion points. If you need to rely on it, pay for a lawyer to give you the peace of mind. What I have mentioned does not count as "free legal advice" simply because it is not legal advice to begin with.

For your information, there are may lawyers who give their views on legal issues on the internet. More often than not, these lawyers do not say "I am a lawyer, so what I say here must be correct". They just give their views with no guarantees, period. If you want a guarantee, then you pay for it

All I can say is that your suspicions are unfounded. And I'm wondering on the basis of your statements that I have highlighted in blue below:

he is not a lawyer, i don't know how you have gotten the idea, and i hope that he clarifies this

a law degree is a professional degree; just like a medical degree is, i thought i'd take the chance to clarify this with the general public.. since you would not ask for medical advice from a non-doctor if you are serious about your health; you should not be asking for legal advice from self-read self-researched people who do not really know how to interpret the law. on other matters, such as philosophy, you could seek advice without fear of any negative impact if the advice is misguiding. on health? on legal matters? those are grounds where i would want sure footing on.

i noticed that a lot of people have the impression that he is; as can be seen from the post below, i thought it is only FAIR that this impression is clarified.. it does seem as if he has admitted that he has no legal qualifications. in fact, from what i understand from most of the people i have talked to the legal profession, a responsible and professional lawyer would not dish out free advice on the internet - it leads to a lot of complications, other than possibly spoiling the market, you have other things like wannabe lawyers tagging along and emulating these actions without any due recourse if anything goes wrong (in vince's own words), which is something the legal system as a whole would not benefit from.

i am not asking him to keep quiet, we all need opinions from different members in our community, but i am more than certain that he agrees with me that a clear impression should be put through, instead of misleading uninformed people. your post is a clear example of the misconception that is deeply rooted within many people here based on his posts in the past.. admittedly it is not his fault per se, but i suspect he does get a little kick out of referred to as such, which puzzled me, since he never stood out to clarify this point.

last post here, i did not want to post on the matter any further since i do not feel myself sufficiently qualified on the matter, clearly knowing less on the subject due to a less vested interest in this area.. unlike vince, who has clearly put a lot of time and effort into reading up on law and prides himself on being more than familiar with it.. despite not having actually practised it.. but i saw this post, and i had to respond.

p.s. my friend is not a lawyer, he is a law student, and in fact, he also mentioned that i should not rely on him wholly on legal matters either, because he is not qualified.

 

[vince123123]

Addon: Just as you are concerned about misleading statements relating to legal matters, I feel the same way too, which is why I often give my own views when I see views relating to legal topics which do not appear to be based on any real legal basis or authority; which admittedly, was how this whole discussion started.

 

[TMC]

can we get a REAL lawyer in here?

 

[Goondoo]

can we get a REAL lawyer in here?

A REAL Lawyer do not normally provide FREE consultations.

 

[vince123123]

Yep, a lawyer will not usually give free legal advice because he also has to factor in his professional indemnity insurance.

I do believe that most professionals will not provide free consultations, ranging from architects, doctors, accountants etc.

A REAL Lawyer do not normally provide FREE consultations.

 

[garou12]

can we get a REAL lawyer in here?

No professional in their right mind will come out and state something in a public forum where their words can be twisted and the meaning usurped...that's grounds for trouble for them...only glory hounds with something to prove will do that (not directed at vince123123 ).

 

[Canonised]

can we get a REAL lawyer in here?

sorry he is too busy .... just promoted to the AG ...:dunno:

 

[vince123123]

Yup, I totally concur. A lawyer cannot be giving out professional legal advice for free because of negligence suits as well as professional indemnity insurance issues. A lawyer can however, if he chooses to, give his comments provided he makes it clear that such are not to be relied on as legal advice.

No professional in their right mind will come out and state something in a public forum where their words can be twisted and the meaning usurped...that's grounds for trouble for them...only glory hounds with something to prove will do that (not directed at vince123123 ).

 

[vince123123]

Walter Woon?

sorry he is too busy .... just promoted to the AG ...:dunno:

 

[garou12]

Yup, I totally concur. A lawyer cannot be giving out professional legal advice for free because of negligence suits as well as professional indemnity insurance issues. A lawyer can however, if he chooses to, give his comments provided he makes it clear that such are not to be relied on as legal advice.

yup dun wanna open a can of worms when you can avoid it

 

[Canonised]

sorry he is too busy .... just promoted to the AG ...:dunno:

my bad ...... it should be ....

i believe the real lawyer is now too busy to come here ...... he has just been promoted to the Minister for Law .....:bsmilie::sweatsm::sweat:

Mr Shanmugam :thumbsup:

 

[garou12]

my bad ...... it should be ....

i believe the real lawyer is now too busy to come here ...... he has just been promoted to the Minister for Law .....:bsmilie::sweatsm::sweat:

Mr Shanmugam :thumbsup:

errr why would he even want to come here and comment about contract law when this is no where near the appropriate channel to do so?:dunno:

 

[Jason Ho]

I am not sure whats the purpose of this thread in the 1st place.

If anyone of you have anything against another person, do it outside this forum. This forum is not for you to prove you are right or have the last say.

I have already closed off the previous thread and thats obvious that I don't want any more discussion of this sort. Learning to respect my decision is the 1st thing to do in participating in this forum discussion.