Unintended gift....

August 3, 2006 11:07 AM

The vendor delivered my item twice. Do I have to pay for the second item ?

The vendor had the manufacturer drop-ship the item to me (about $30 value). Later a second item arrived, so I gave it away to a friend. My longstanding belief was that I am not responsible for things I didn't order being delivered to me, and that consumer protection law said I was basically allowed to keep such items. I found a reference in New York State Law under "Unordered Merchandise" that seems to agree with me, saying I can consider such a delivery a gift.

The vendor has been double-billed by the manufacturer so they are now asking me to pay for the second item. What are my responsibilities here ?

posted by AuntLisa to law & government (52 comments total)

Can they prove you received it?
posted by smackfu at 11:09 AM on August 3, 2006

The law is clear- you do not have to pay for the second item. Imagine if you had to pay for everything someone accidently sent to you? People would send things just to force people to pay for them. Tell them the law's on your side and to leave you alone. Then file a complaint with the Attorney General.
posted by ThePinkSuperhero at 11:10 AM on August 3, 2006 [1 favorite]

I think the law applies only to unsolicited items. You did have a business relationship with the vendor, a mistake was made, you should have informed them.

(that being said I was the recipient of a double shipment last year, and gave away the 2nd item, however the vendor was so messed up they never knew they shipped either of them!)
posted by Gungho at 11:11 AM on August 3, 2006

I know we've discussed this issue before... ::searches for past post::
posted by ThePinkSuperhero at 11:12 AM on August 3, 2006 [1 favorite]

Not paying for it is theft. You could've returned it. Instead you kept it (albeit by giving it to someone else). So pay for it.
posted by essexjan at 11:17 AM on August 3, 2006

The law is on your side in the sense that you are not obliged to pay for an item that you didn't order.

However I'd suggest you return the 2nd item if you have an ongoing relationship with the vendor that you want to preserve, or even just to do the right thing. The vendor should cover the cost of shipping it back to them, of course.
posted by randomstriker at 11:19 AM on August 3, 2006

I think the law applies only to unsolicited items.

Exactly. One was ordered, two were sent, therefore, the second was unsolicited.
posted by ThePinkSuperhero at 11:19 AM on August 3, 2006 [1 favorite]

Also discussed here.

FTC on Unordered Merchandise:

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.
posted by vacapinta at 11:22 AM on August 3, 2006

Previously here. With my $.02.
posted by ObscureReferenceMan at 11:22 AM on August 3, 2006

Tell them you will mail it back if they credit you for the same. For such a low-priced item, most companies will let you keep it because of reshipping and restocking costs. You acted a little hastily in giving it away even if the law does side with you. Think about your karma.
posted by JJ86 at 11:23 AM on August 3, 2006

The second wasn't unsolicited. The term 'unsolicited goods' refers usually to goods that are sent without any order of any kind having been placed. This was an error by the seller.

If this happened in a face-to-face transaction and the sales assistant brought you out the shoes you wanted, and then, harried and busy, mistakenly brought out another identical pair, you wouldn't expect to walk out of the store with the second pair for free.
posted by essexjan at 11:24 AM on August 3, 2006

Damn! And I just previewed!!
(Curse you vacapinta, and your fast fingers! Just kidding. Group hug...)
posted by ObscureReferenceMan at 11:25 AM on August 3, 2006

You probably need to return the second item or pay for it. Informally, there is a significant difference between voluntarily sending unsolicited goods and accidentally sending goods under a (mistaken) belief that they're solicited. When you received the duplicate item, you knew (or, in the law's words, "should have known") that the second one was a mistake.

More formally, the New York law cited on the page you links states:

No person, firm, partnership, association or corporation, or agent or employee thereof, shall, in any manner, or by any means, offer for sale goods, wares or merchandise, where the offer includes the voluntary and unsolicited sending of goods, wares or merchandise not actually ordered or requested by the recipient, either orally or in writing; any such goods, wares or merchandise so sent shall be prominently marked upon the container thereof in bold letters as follows: "THIS IS A GIFT. PAYMENT NOT REQUIRED FOR THIS ITEM". The receipt of any goods, wares or merchandise pursuant to an existing membership or club arrangement in which the recipient receives such goods, wares or merchandise at specified intervals or a plan where the recipient agrees to receive such goods, wares or merchandise without further obligation shall not be construed as the receipt of unsolicited goods, wares or merchandise for the purposes of this section. The receipt of any such unsolicited goods, wares or merchandise shall for all purposes be deemed an unconditional gift to the recipient who may use or dispose of the same in any manner he sees fit without any obligation on his part to the sender.

That language doesn't appear to cover what happened here. That was not an "offer for sale;" that was a botched attempt to fulfill the terms of an already agreed-upon sale.
posted by grimmelm at 11:25 AM on August 3, 2006

And my apologies for the semicolon inside of the quotation marks.
posted by grimmelm at 11:26 AM on August 3, 2006

I want to add that what the results in this thread are of the high-school level debate about what constitutes "unsolicited" have zero relevance on what the law has decided in this matter.

I couldnt find any legal definition. Its difficult to tell whether the FTC statement above is one of legal obligation or simply a goodwill recommendation.
posted by vacapinta at 11:27 AM on August 3, 2006

You acted a little hastily in giving it away even if the law does side with you.

I agree. There's a difference between what you can get away with and the right thing to do.
posted by languagehat at 11:28 AM on August 3, 2006 [1 favorite]

Can you get free legal advice from a lawyer?

If you can't get free legal advice from a lawyer, is $30 worth it to make the problem just go away?
posted by KirkJobSluder at 11:32 AM on August 3, 2006

The law on mailed items is clear - you didn't ask for the second one, you are under no obligation to pay for it. (If it were otherwise, we would have tons of scammers who send 10 items when you ordered 1 and then demand you pay for all 10.)

However, having received two, I personally would have offered to send the second one back to the shipper at their expense.
posted by jellicle at 11:33 AM on August 3, 2006

Ethics and laws are different things. The ethical thing to do would have been to contact them, let them know what happened, and ask if they wanted to pay to have it shipped back to them. If not, at that point, you could have given it away. But for some unknown reason, you chose not to do this relatively easy thing, and now have a serious ethical and legal dilemma.

I find the the that the most ethical solution usually causes the least problems down the road. Perhaps you have learned that lesson now as well.
posted by luriete at 11:34 AM on August 3, 2006

The item was unsolicited; the transaction was complete when you received the first item. You are under no obligation to return the second item or compensate them for it. But if you ever want to do business with them again, you might wanna consider paying for it.

Essexjan, not only are you incorrect but your analogy isn't analogous.
posted by solid-one-love at 11:35 AM on August 3, 2006

You may not have to give it back but its pretty unethical to keep it without paying for it. I'd send it back or pay for it.
posted by fenriq at 11:45 AM on August 3, 2006

I'm talking ethics here, solid-one-love. Keeping something you know you haven't paid for is just plain wrong.

I also believe in karma and that if the item isn't paid for, something else will break/go wrong/be lost that'll cost either the same or maybe a little more to replace or fix.
posted by essexjan at 11:51 AM on August 3, 2006

Keeping something you know you haven't paid for is just plain wrong.

Possibly, but sending an item that the buyer didn't ask for and demanding payment is illegal.

I also believe in karma and that if the item isn't paid for, something else will break/go wrong/be lost that'll cost either the same or maybe a little more to replace or fix.

That's nice, but not an answer.
posted by bshort at 12:05 PM on August 3, 2006

AuntLisa, it's hard to know what you're asking for when you ask "what are my responsibilities" -- as others have noted, you have legal responsibilities and ethical ones. And in my (humble) opinion, while there seems to be a debate about your legal responsibilities, there's no debate at all about your ethical ones -- you should have called them, told them of the error, and offered them the chance to reclaim their merchandise. I can't imagine why you didn't do that; it's one of those things where, if you imagined that you accidentally sent two somethings to someone when you only intended to send one, you'd probably wish that that person had given you the chance to fix the error. Alas.
posted by delfuego at 12:11 PM on August 3, 2006

I'm talking ethics here, solid-one-love. Keeping something you know you haven't paid for is just plain wrong.

When you receive unsolicited goods by mail, keeping them is not "just plain wrong". You are, as I said, incorrect in your statement that the goods were not unsolicited and your analogy is, as I said, not analogous because while keeping goods you haven't paid for at retail is just plain wrong, this is a completely seaparate and not analogous situation.

delfuego, I disagree: I think that there is no debate at all about the poster's legal responsibilities and some debate about the poster's ethical responsibilities.

I can't imagine why you didn't do that

Because the Golden Rule doesn't always apply.
posted by solid-one-love at 12:20 PM on August 3, 2006

Sorry, solid-one-love, but that entire line of thinking smacks of rationalization rather than ethics. Clearly, nobody's going to convince you that keeping "unsolicited", mailed merchandise is wrong, but people were hopeful that it'd be possible to convince you and/or AuntLisa that there is such a thing as an honest mistake for which a company shouldn't be punished because of your own desire to find an arbitrary justification for your actions; apparently, that ain't going to happen either. So there we are, at an impasse.
posted by delfuego at 12:40 PM on August 3, 2006

Did you sign for both items?

If not, just say that one was never delivered. problem solved.
posted by Megafly at 12:46 PM on August 3, 2006

Not paying for it is theft. You could've returned it. Instead you kept it (albeit by giving it to someone else). So pay for it.


Hit the nail on the head.

This wasn't unsolicited merchandise (say, a free sample in the mail). This was an error.
posted by dirtynumbangelboy at 12:50 PM on August 3, 2006

They're not demanding payment on an unsolicited item - I'm sure they'd be happy if you returned it unused. That is your responsibility.
posted by muddgirl at 1:11 PM on August 3, 2006

I appreciate all the discussion, though I'll admit I was hoping for a clear consensus, to help me decide what to do.

I of course wasn't trying to scam them, and since I have actually ordered the same item (my preferred baby gift) from them several times, I wasn't sure that it was a duplicate shipment when it arrived.

That said, they sell a good product at a very fair price, and I do feel this is an ethical gray area. I'll probably pay the $30 for the sake of karma and a quiet conscience.
posted by AuntLisa at 1:20 PM on August 3, 2006

I also believe in karma

I believe in unicorns! (about as on-topic as the karma people)

Its unsolicited but the law may vary from state to state. Here's washington:

According to Washington State and federal laws, goods mailed without authorization are gifts. Unless otherwise agreed, such as with some book and record clubs, when you receive unsolicited goods through the mail, you have the right to accept delivery of such goods as gifts and are not obligated to return the goods to the sender nor to pay for them. Under Washington law, goods or services are not considered to have been requested if a person fails to respond to an invitation to purchase the goods or services and the goods or services are provided notwithstanding.

posted by the ghost of Ken Lay at 1:27 PM on August 3, 2006

I'd allow them to schedule a pickup if they want, but I think the scolding ethical argument is a little overplayed by some commenters.

How sympathetic would the business be if it were your own mistake?

If this is a typically large, clumsy business bungling their orders, I wouldn't feel the slightest obligation to help them fix their own mistake. I wouldn't call them, wait on hold, and explain the situation. And now that they've noticed the error, I wouldn't carry the item to the post office for them. I might tape it up in its box if I still had it. But that's about all the work I'd be willing to do for free.

On the other hand, maybe this is the nicest business ever. In that case I would take it to the post office, but they would need to pay shipping.
posted by Doctor Barnett at 2:02 PM on August 3, 2006

This isn't an ethical gray area. You had the item, knew you paid for one, and they accidentally sent a second which you then gave away. You didn't even give them an opportunity to fix their mistake. That is unethical.

If you accidentally paid them twice, would you be mad if they decided to just give the money to someone else, since they didn't solicit the second payment? Well, they didn't solicit that second payment, so fuck you! That's pretty much what you've done to them.

Ethical gray area? Ethical people treat others like they'd like to be treated themselves.

Pay them.
posted by MegoSteve at 2:18 PM on August 3, 2006

If not, just say that one was never delivered. problem solved.

Right, lying solves many ethical problems. And the idea can be extended:

just hide the doctor's report. problem solved.

just take the money from his wallet when he's not looking. problem solved.

just nuke them from orbit. problem solved.
posted by languagehat at 2:47 PM on August 3, 2006

First of all, the correct explanations of the legal ins and outs will depend on the jurisdiction. Where is this happening, the US?

But I think the answer will be pretty much the same, no matter where this happens.

They sent you one of the two items by mistake. (Interesting sidenote: how do we know that the second item and not the first one was sent by mistake?) Clearly, they did not intend to send you two items, since you ordered one.

One of the two items is not yours, it's still the property of the seller. Therefore, they can claim it back (or demand payment instead).
I believe you don't have an obligation to send it back to them, since that would incur shipping costs due to a mistake that THEY made. But if they send someone to pick up the item (which they probably won't, since the value of the item is so low), you cannot refuse to hand it back.

So one strategy might be to refuse to send the item back or pay for it, and instead, if they contact you again, offer them to send someone to pick it up (you still have the first item, right?).

I think that would also be OK karma-wise.
posted by sour cream at 3:03 PM on August 3, 2006

a company shouldn't be punished because of your own desire to find an arbitrary justification for your actions

It's reward/payoff. My time is worth more than $30 an hour. I am not going to be compensated for the time I spend trying to rectify an error that I am absolutely not legally obliged to rectify. There is nothing arbitrary about this justifcation, and it is certainly not unethical. I no more have a responsibility to ensure the return of the item than they have a responsibility to compensate me for my effort in doing so.

Nobody is being "punished". Try to avoid the emotionally-loaded language.

This is not an ethical gray area, correct. Ethically, the poster should not return the item or pay for it because (i) s/he is not being compensated for that effort, (ii), giving in to what is tantamount to extortion is nearly as bad as being an extorter and (iii) whenever a sizeable number of MeFites agree on a piece of ethical advice, they are nearly always wrong (and this is no exception).
posted by solid-one-love at 3:22 PM on August 3, 2006

Let's be clear folks: the recipient *did ask for the item*.

Any argument here that says "the recipient didn't ask for the item" is fundamentally flawed.

Should the seller compensate the recipient for shipping and such? Certainly? Is the recipient entitled to keep both of them?

Well, I can't Shepardise it, and anyone who can doesn't appear to have chimed in yet.

But I strongly suspect a judge would not term it "unsolicited".
posted by baylink at 3:38 PM on August 3, 2006

Let's be clear folks: the recipient *did ask for the item*.

Any argument here that says "the recipient didn't ask for the item" is fundamentally flawed.

T'isn't. He asked for the item he recived, not the second one. He didn't order two. He ordered one. The second was unsolicited.

But I strongly suspect a judge would not term it "unsolicited".

Wish I could cite some case law, but I think the lack of such shows you to be incorrect.
posted by solid-one-love at 3:42 PM on August 3, 2006

Oh, just FYI, this page from the FTC makes specific reference to shipping errors, as does this page. Reading between the lines, a shipping error is considered to be unordered merchandise.

But, yeah, it should be pretty obvious that getting a second item in the mail is unordered merchandise. A sale of this kind is a contract between buyer and seller; once the seller delivers and the buyer pays, the contract has been fulfilled. It's done. Anything after that is not part of that contract.
posted by solid-one-love at 3:51 PM on August 3, 2006

I think a compromise is in order.

Since it's not at all right that they'd send it to you and expect you to pay shipping on it, what you'd owe them if you still had the good was $30, minus what it would cost you to ship it back.

Offer to pay them the $30, minus a reasonable amount for shipping. (IMHO, it is not unreasonable to include the cost of insuring the package in the cost.) From their perspective, they'd be getting the same amount either way, whether you shipped it back or just paid them.

If they really object, I'd just pay the $30. But it's worth trying the lower sum first. (I would recommend having an exact quote on shipping calculated before you call, so it doesn't sound like you're making crap up.)
posted by fogster at 5:37 PM on August 3, 2006

just nuke them from orbit. problem solved.

Well, it is the only way to be sure.
posted by bingo at 7:26 PM on August 3, 2006

Bill your friend the $30.
posted by flabdablet at 8:26 PM on August 3, 2006

This is not an ethical gray area, correct. Ethically, the poster should not return the item or pay for it because (i) s/he is not being compensated for that effort, (ii), giving in to what is tantamount to extortion is nearly as bad as being an extorter and (iii) whenever a sizeable number of MeFites agree on a piece of ethical advice, they are nearly always wrong (and this is no exception).


wtf? Ethically, the poster should return the item, because it was a mistake. It wasn't extortion, it was a shipping error. Period. Saying that X is tantamount to Y is really saying "if you stretch the definition to unrecognizability, X bears a vague resemblance to Y."

Let's try this the simple way: you got something, by mistake, that you didn't pay for. You are therefore ethically obligated to return it--sure, at their expense is fair, I think--but you do return it. End of story.
posted by dirtynumbangelboy at 7:12 AM on August 4, 2006

You are not under an obligation to correct other people's mistakes. This is a company with an established operation, if they can't keep a handle on their merch, that's their problem not yours.

It would be nice of you to return it, but certainly not required or 'right' whatever that means.

Now what's right and what's smart is another thing entirely. It would probably be worth the $30 to just pay them and keep the business relationship happy.

I would pay them the $30 (if I could spare it) simply because its worth $30 not to have to deal with irritated Accounts Receivable departments and explain this, but that's me.
posted by Skorgu at 8:29 AM on August 4, 2006

The notion that someone owes you $30 an hour to be a decent human being is utterly repugnant. Do you charge for the inconvenience of holding doors open for old ladies, too?
posted by MegoSteve at 8:30 AM on August 4, 2006 [1 favorite]

Old ladies and mail order businesses are different. So is the olde towne shoppe. It's a pretty cold world out there doing business without physical contact. If you extend (most) sellers any courtesy, you're being a sucker and that's that.

What if, in returning a product, your gradma's perl neclace slipped into the box? You'd be lucky to ever see it again, and you better believe you'd have to beg, plead, and have fedex show up at their office for it. If it were "lost," they'd laugh at a demand for compensation.
posted by Doctor Barnett at 8:53 AM on August 4, 2006

And they'd be wrong as well, but someone else's theoretically crappy behavior doesn't grant you license to be proactively crappy toward them.
posted by MegoSteve at 10:17 AM on August 4, 2006

Open your eyes, man, crappy mail order behavior ain't just theory.

I'm a lot nicer than I talk though. This week I (uh, proactively) called Crate & Barrel after ordering a couch to tell them I wouldn't need the (free) fabric swatch, since I had it already. "Ok, sir, we've cancelled the swatch order." Guess what was inside an overnight mailer in my lobby two days later?

I think it's a little unreasonable to chastise people for not being nice enough to impersonal companies that, on the whole, are both incompetent and amoral. But I think I've said more than enough. If you must chastise AuntLisa, then chastise her you shall.
posted by Doctor Barnett at 10:57 AM on August 4, 2006

It would be nice of you to return it, but certainly not required or 'right' whatever that means.


I don't follow. You get something by mistake, free. It wasn't malicious, it wasn't extortion, it was an error. How is it not right to fix that error without profit?
posted by dirtynumbangelboy at 11:36 AM on August 4, 2006

This is probably the most surprising thread I've ever followed on Metafilter. I am utterly aghast that certain people are able to put this kind of monetary value on normal, human, ethical behavior, and I hope One Love never finds a wallet that I lose, because it might cost him more than a nickel to return it and being a human being, in that world, has a pretty big price tag on it.

Nobody expects to make money off being a human being. Nothing is worth doing that doesn't cost a certain price, monetarily or otherwise.
posted by luriete at 2:06 PM on August 4, 2006

and I hope One Love never finds a wallet that I lose

Way to conflate two completely unrelated situations. I hope I find your wallet, too, because dishonest people deserve misery.
posted by solid-one-love at 2:19 PM on August 4, 2006

dirtynumbangelboy what does 'right' mean anyway? There are enough meaningless, ambiguous and contradictory definitions of the word to define it as basically any way you like. People have and will continue to couch all sorts of behavior as 'right.'

If your definition of right is do unto others, I'm fine with that. If I'm dumb enough to send something to the wrong address, that's my mistake and I accept the consequences of that which is a loss. It would be nice if the recipient offered to send it back, but it wouldn't be any more 'right.'

What if my personal morality directs me to attempt to work towards a functioning free market? In that case, errors and mistakes indicate ineptitude. Fixing that ineptitude wouldn't stop the problems from happening and would affect the flow of commerce.

Maybe I think that I (and everyone else) should do what is most likely to grant the most happiness for the most people? Would fixing the mistake make GiantFacelessCorp.com more happy? Would it make me more happy? Is it likely to affect anything important, ever?

I could also just be insane. I could be a nihilist and reject the very notions of external morality. I could be a Supply Side economist and see this as trickling down. Or I could be an idiot. Granted I repeat myself, but you get the idea. Like it or not, these are all as valid as moral theories as whatever yours is.

Without a justification of what basis you base your morality and judgements on, attempts to judge and moralize are inevitably ambiguous and therefore irrelevant. If we really want to get into a moralistic debate, that's fine. Other than that, maybe not assuming that your morality is obviously the One True Morality that Everyone Agrees With wouldn't go amiss, mmkay?
posted by Skorgu at 4:42 PM on August 4, 2006