ARTICLES
later.” From his words, it can be observed that Rajah JC seems to favour the view that there are reasonable reasons for postal rule to not apply. However, he acknowledged that the arguments for applying and not applying are both valid and that at this current point, there is no default rule in Singapore though was of the opinion that having one could bring about certainty.37 A recent case of 1L30G Pte Ltd v EQ Insurance Company Ltd38 brought about a discussion about the postal rule where a similar stance from the case of Digiland was reiterated with an added emphasis that the judge has to decide whether the parties have ultimately given their authorisation for the postal rule to be used. Lee Sieu Kin J found that both the postal rule could apply, “Postal rule could apply to emails as they are technically not instantaneous and the control is lost”39 and the receipt rule as well, “But same time for instant or near instant ones receipt rule could apply”.40 In the end, Lee J mentioned that the courts would provide flexibility and look at the circumstances to decide which rule would be appropriate, as seen in “For these reasons, the postal acceptance rule only applies in circumstances where both parties intend for it to apply.” 41 It can be observed from the case that the local courts’ stance on the issue remain to be undecided and meant to be permissive,42 which was what the model law by UNCITRAL set out to do. In general, the flexible approach allow for the courts to better analyse the contract and the parties’ intention, which despite might result in more uncertainty would better encompass all the complexities within current technology43 as highlighted by Mik. 37 Phang Andrew, Contract Formation and Mistake in Cyberspace – The Singapore Experience (The Singapore Academy of Law Journal, 17, 2005) 38 1L30G Pte Ltd v EQ Insurance Company Ltd [2017]
SGHC 242
40
39 ibid. at [29] 40 ibid. 41 ibid. at [30] 42 Chwee Kin Keong and others v DigilandMall.com Pte Ltd [2004] 2 SLR 594 at [92] 43 Mik Eliza, Certainty at last?: A “new” framework for electronic contracting in Singapore (Journal of International Commercial Law and Technology, Vol 8, No 3, 2013)
Conclusion The different attitudes held by both countries can be seen with the different adoption of rules. The UK courts have made strong distinction between using post and using means of instantaneous communications including emails where postal rule would not be applied unlike in Singapore, which seems to be more accepting of applying the postal rule and adopting a more flexible approach in deciding between the rules. Rajah JC classified emails to be noninstantaneous due to the possibilities of error while processing as compared to fax or a call as well as the need for the emails to pass through servers similar to a mail being sent through a postal service. This understanding is supported by the ideas by scholars such as Mik, Tan and Reed about how emails should be subjected to the postal rule as well due to the similarity of having a middleman that is delivering the acceptance. The difference in treatment could be due to Singapore’s unique position with information technology being a significant part of the city’s trade, resulting in a possible need to keep a more open approach. At the same time, the UK has established case law that would have to apply due to precedence. Nonetheless, a similarity can be drawn between Singapore’s approach of flexibility and UK’s recent case of Thomas v BPE that mentions sound business principles, where both countries acknowledged the difficulty in the technicalities of emails, resulting in the courts needed to take a more case-by-case analysis for a more holistic consideration.