UK Retailer Mistakenly Sends PS Vitas, Threatens Legal Action To Get Them Back 617
New submitter Retron writes "The BBC brings news that British retailer Zavvi mistakenly sent out PlayStation Vitas to people who had preordered a game called Tearaway. The company is now threatening legal action against those who have kept theirs despite a request to return them. It's unclear whether the Distance Selling Act protects consumers who have mistakenly been sent an expensive item, and forums such as Eurogamer seem divided on the issue."
Re:A US perspective (Score:4, Informative)
In the United States getting stuff in the mail unsolicited is considered a gift and is not required to be returned...for the exact reason you specified; I can mail everyone on my block an Ubuntu cd and then claim they owe me $10 for accepting it.
I don't know if a shipping error counts as being unsolicited, but I don't think the company would have any recourse. IANAL.
Re:Letter o' the Law (Score:5, Informative)
If you'd read the law, you'd see that this isn't the case. From the relevant law, which is linked to in TFA:
24.—(1) Paragraphs (2) and (3) apply if—
(a) unsolicited goods are sent to a person (“the recipient”) with a view to his acquiring them;
(b) the recipient has no reasonable cause to believe that they were sent with a view to their being acquired for the purposes of a business; and
(c) the recipient has neither agreed to acquire nor agreed to return them.
(2) The recipient may, as between himself and the sender, use, deal with or dispose of the goods as if they were an unconditional gift to him.
(3) The rights of the sender to the goods are extinguished.
It is not your property. (Score:5, Informative)
As a general rule you are not the owner of property sent to you in error.
If someone _deliberately_ sends unsolicited property to you, then the usual rule is this is presumptively a gift.
If someone _accidentally_ sends property to you then the usual rule is that ownership is not transferred automatically.
However if you reasonably assumed it was a gift then you might have lost it or sold it thinking it was your own, and since the error was not yours, you would not be liable. On the other hand, it is unreasonable to think a store would send you a video game system for no reason. And a reasonable person who orders something from a store, and recieves the wrong product would first suspect an error on the stores part. If you contact the store and they say "nope it is a gift!" then you can keep it.
Re:Jackpot (Score:5, Informative)
"I'd keep it."
In the U.S., if you receive merchandise you did not order, there are several rules that apply. I believe these are probably the most relevant:
A) You can keep it, unless (or until) the provider requests that you return it.
B) If whoever sent it to you does request its return, they are liable for the shipping cost, and you can charge a "reasonable" storage and maintenance fees for the product while it was in your custody.
Re:A US perspective (Score:2, Informative)
"In the United States getting stuff in the mail unsolicited is considered a gift and is not required to be returned...for the exact reason you specified; I can mail everyone on my block an Ubuntu cd and then claim they owe me $10 for accepting it."
That's not quite true. You are not required to pay for un-ordered merchandise, but you are required by law to return the product if they request it. However, they are responsible for the shipping cost, and you can charge them a "reasonable" storage and maintenance feel for the period of time the product was in your custody.
For that reason, companies do not usually request their products back. It's just not worth their while. And what constitutes a "reasonable" fee can only be determined on a case-by-case basis.
Re:Gray area? Not in the US (Score:5, Informative)
Q. What should I do if the unordered merchandise I received was the result of an honest shipping error?
A. Write the seller and offer to return the merchandise, provided the seller pays for postage and handling. Give the seller a specific and reasonable amount of time (say 30 days) to pick up the merchandise or arrange to have it returned at no expense to you. Tell the seller that you reserve the right to keep the merchandise or dispose of it after the specified time has passed.
Keeping something you know belongs to someone else is theft.
Re:Jackpot (Score:3, Informative)
" unless (or until) the provider requests that you return it. "
false.
Re:A US perspective (Score:3, Informative)
"but you are required by law to return the product if they request it. "
no, you are not.
from USPS( http://about.usps.com/publications/pub300a/pub300a_tech_021.htm [usps.com] ) bolding done by me:
A company sends you a gift in the mail — a tie, a good luck charm, or a key chain. You didn’t order the gift. What do you do? Many people will feel guilty and pay for the gift. But you don’t have to. What you do with the merchandise is entirely up to you.
If you have not opened the package, mark it “Return to Sender.” The Postal Service will send it back at no charge to you.
If you open the package and don’t like what you find, throw it away.
If you open the package and like what you find, keep it — free. This is a rare instance where “finders, keepers” applies unconditionally.
Whatever you do, don’t pay for it — and don’t get conned if the sender follows up with a phone call or visit. By law, unsolicited merchandise is yours to keep.
Re:Gray area? Not in the US (Score:4, Informative)
"Anything you didn't ask for is unsolicited by definition.
dumb ass."
Nope. Wrong. DrXym's comment is correct.
There is a difference between "unsolicited merchandise", and a mistake on a legitimate order. Unsolicited merchandise (regardless of the literal meaning of "unsolicited") is something that was sent to you out of the blue, i.e., you had no contact with the sender and weren't expecting anything at all.
Mistakes on legitimate merchandise orders are something entirely different. You DID order something. You DID expect something to be delivered. It was just the wrong thing.
Re:Jackpot (Score:5, Informative)
Re:Letter o' the Law (Score:4, Informative)
Re:A US perspective (Score:2, Informative)
Re:Letter o' the Law (Score:4, Informative)
Now how about (a) and (b) which would also have to be true since the word used is "and".
Re:Jackpot (Score:5, Informative)
"You just contradicted yourself. It is unsolicited merchandise precisely because you solicited something else."
If you take it literally, yes. But you are being too literal.
The U.S. law about "unsolicited merchandise", is a law against somebody sending you something you hadn't asked for, then trying to force you to pay for it. It is considered to be a form of "unfair" trade practice.
But the law only applies if somebody is doing it on purpose. Mistakes are not "unfair trade practices". Sending you something other than what you DID ask for, if it is a mistake, is not an intent to defraud you and so the unsolicited merchandise law does not apply. You see?
Re:Jackpot (Score:4, Informative)
But the law only applies if somebody is doing it on purpose.
Your assertion is in disagreement with the US Postal services' word on the matter [uspis.gov] that "finders-keepers" applies unconditionally in the case of receiving any unordered merchandise .
Re:Jackpot (Score:4, Informative)
Under UK law if you receive something unexpected you are obligated to inform the sender, and then make the items available for collection if they want them back. Having done this, if they fail or refuse to collect the goods you are free to keep them.
In this case however the delivery was not unexpected, these users were expecting a delivery from zavvi and didn't receive what they ordered... Normally when this happens (ie every time it's happened to me) you get something massively inferior to what you ordered so you'd have no reason to keep it.
The seller is in breach of their contract by sending you something different to what you ordered, and should at the very least be compensating you for messing up your order.