Technology15 mins ago
Manufacturer's Mistake, My Gain?
13 Answers
I returned a faulty MP3 player to the manufacturer. They sent me a new one by courier, then a second one a few days later! I signed for both, can I keep them both?...I really want to!
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The manufacturer has kindly made an 'unconditional gift' which you're under no obligation to pay for or to return. (Unsolicited Goods and Services Act 1971)
Details are here, courtesy of the Department of Trade & Industry:
http://www.dti.gov.uk/ccp/topics1/unsolicited.htm
Chris
(PS: My friend gained a mobile phone this way!)
Details are here, courtesy of the Department of Trade & Industry:
http://www.dti.gov.uk/ccp/topics1/unsolicited.htm
Chris
(PS: My friend gained a mobile phone this way!)
(2 part posting because, like most of my ramblings, it's far too long!):
I think Oneeyedvic is trying to worry you over nothing. Situations like this one have been referred to several times on those radio phone-ins where solicitors give out free advice. The usual line taken is "It's a bit of a grey area but it could well be argued that the Unsolicited Goods Act applies here". (My way of looking at it is that, although the first MP3 player was 'solicited' by you, the second one was most definitely not).
What is certain, however, is that no succesful prosecution could be made under the Theft Acts. (This is because the item was willingly sent to you, rather than you taking it away or using deceit to obtain it). So, if you retain the MP3 player, any dispute between you and the sender is only a civil dispute and not a criminal matter.
It is extremely unlikely that any company would bother to initiate civil action, even through the small claims court, because it simply wouldn't be worth their while. Even if the company could convince you (through the courts or otherwise) that the MP3 player is still their property you would still be under no obligation to return it unless either they sent someone to collect it (at a time convenient to you) or they provided you with post-paid packaging to mail it back. In the latter case, you would be entitled to make an 'administration charge' to cover the time and inconvenience of wrapping the item and taking it to the post office. Any such charge has to be 'reasonable' but remember that banks manage to justify �30 as a 'reasonable' administration fee when their computer generates a standard letter to you!
I think Oneeyedvic is trying to worry you over nothing. Situations like this one have been referred to several times on those radio phone-ins where solicitors give out free advice. The usual line taken is "It's a bit of a grey area but it could well be argued that the Unsolicited Goods Act applies here". (My way of looking at it is that, although the first MP3 player was 'solicited' by you, the second one was most definitely not).
What is certain, however, is that no succesful prosecution could be made under the Theft Acts. (This is because the item was willingly sent to you, rather than you taking it away or using deceit to obtain it). So, if you retain the MP3 player, any dispute between you and the sender is only a civil dispute and not a criminal matter.
It is extremely unlikely that any company would bother to initiate civil action, even through the small claims court, because it simply wouldn't be worth their while. Even if the company could convince you (through the courts or otherwise) that the MP3 player is still their property you would still be under no obligation to return it unless either they sent someone to collect it (at a time convenient to you) or they provided you with post-paid packaging to mail it back. In the latter case, you would be entitled to make an 'administration charge' to cover the time and inconvenience of wrapping the item and taking it to the post office. Any such charge has to be 'reasonable' but remember that banks manage to justify �30 as a 'reasonable' administration fee when their computer generates a standard letter to you!
(2nd Part!):
So, I'm still convinced that you can keep your 'gift'. If, however, you do get involved in any correspondence or phone calls with the company, I'll give you one more bit of advice:
I've always found the phrase "I have been advised that . . .", very useful when dealing with disputes with big companies. It suggests that you've already seen a solicitor (or at least been to the local Citizens' Advice Bureau). The fact that your 'advice' actually comes from AB, the back of a matchbox or the pages of the Beano is completely irrelevant - it's usually enough to get them worried!
Chris
So, I'm still convinced that you can keep your 'gift'. If, however, you do get involved in any correspondence or phone calls with the company, I'll give you one more bit of advice:
I've always found the phrase "I have been advised that . . .", very useful when dealing with disputes with big companies. It suggests that you've already seen a solicitor (or at least been to the local Citizens' Advice Bureau). The fact that your 'advice' actually comes from AB, the back of a matchbox or the pages of the Beano is completely irrelevant - it's usually enough to get them worried!
Chris
I'm sorry, but solicitation implies that they are trying to charge you for something. They are obviously not trying to charge you, or to make you buy something. Very simply they have made a mistake in sending you a second item.
Therefore, I stand by my above and say It is not an unsolicited item!
Also, as I said, I would keep the item, as I (as most people have before me said) the chances of them (a) finding out about it and (b) doing something about it are very remote.
That said, if they were to contact you and say "we have noticed an error and have sent you two items, please send one back in the prepaid envelope", if you insited on keeping the item, I suspect that if they did bother taking you to court (which I doubt they would) they would pretty much be on a winner.
Hmm.... Oneeyedvic has clearly got a different set of dictionaries (and legal references) to me!
The Unsolicited Goods Act came about because some companies were sending products to people with a letter which basically said "Here are some Christmas cards (or whatever). We expect you to either pay for them or send them back to us at your own expense". The legislation was brought in to clarify the legal position in such cases. Items, such as the Christmas cards referred to, were defined as 'unsolicited' because the recipient had not solicited the act of sending them. Thus goods can be 'solicited' or 'unsolicited' whether or not a demand for payment is made.
The sending of unsolicited goods is not, per se, illegal. (I can send out as many MP3 players to as many strangers as I like without contravening any law). The law only becomes involved if a demand for payment (or for the return of the goods) is made. So the 'soliciting' isn't something done by the sender. It's done - or rather, not done - by the recipient.
So I stil maintain that the second MP3 player was 'unsolicited'. Even if it wasn't, the Theft Acts have no bearing on this situation and civil action is unlikely.
At least we agree on something - Laurinha should keep her 'free gift'!
Chris
The Unsolicited Goods Act came about because some companies were sending products to people with a letter which basically said "Here are some Christmas cards (or whatever). We expect you to either pay for them or send them back to us at your own expense". The legislation was brought in to clarify the legal position in such cases. Items, such as the Christmas cards referred to, were defined as 'unsolicited' because the recipient had not solicited the act of sending them. Thus goods can be 'solicited' or 'unsolicited' whether or not a demand for payment is made.
The sending of unsolicited goods is not, per se, illegal. (I can send out as many MP3 players to as many strangers as I like without contravening any law). The law only becomes involved if a demand for payment (or for the return of the goods) is made. So the 'soliciting' isn't something done by the sender. It's done - or rather, not done - by the recipient.
So I stil maintain that the second MP3 player was 'unsolicited'. Even if it wasn't, the Theft Acts have no bearing on this situation and civil action is unlikely.
At least we agree on something - Laurinha should keep her 'free gift'!
Chris
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