If something is sent to you in error can the sender demand it back?

November 30, 2006 8:52 AM

LegalFilter: A laptop was sent for repair under warranty to Gateway. According to one of their customer service policies, if the repair isn't returned to you within 14 days they'll send you a new one. This time period passed and a new laptop was shipped out. A few days later, the old laptop (now fully repaired) was shipped in error. If a person is now in possession of both laptops because of an error in the vendor's shipping, does the vendor have legal ground to demand one of them back? This is in the US.
posted by saraswati to law & government (16 comments total)

Well, that depends on exactly what their customer service policy says. I would guess that it (or some other agreement you signed) says that once they ship out the new laptop, your old laptop becomes theirs forever, which would make it an unlawful conversion for you to keep the old laptop (i.e., they could sue you for its value).

Looking at Gateway's service agreements I can't find anything too conclusive on that score, but I did notice that you signed a binding arbitration agreement, which means that the dispute will be resolved through arbitration rather than litigation. What that means to you is that you'll need a more expensive lawyer and (all other things being equal) will be less likely to win than in court.

Any chance you can post whatever agreement specifically mentioned the 14 day period?
posted by jedicus at 9:03 AM on November 30, 2006

I'm not sure why you are concerned with the legal reality; isn't the ethical onus so much more important and to make the legal agreement immaterial? It's not like you can still be a decent human being and keep both of them. Choose between ethics and personal gain, and then do whatever your choice dictates.
posted by luriete at 9:13 AM on November 30, 2006 [2 favorites]

ZenMasterThis apparently could sub in for the NYT's Ethicist, because I think he got it. Whether or not Gateway has legal grounds to the second laptop has little bearing here. Just send it back. I'm no fan of big corporations, but I'm no fan of taking (or, in this case, keeping) that which isn't really mine either.
posted by incessant at 9:16 AM on November 30, 2006

I, and the person I asked the question for understand what ethically should be done. My question was one of curiousity specifically regarding the legality of not returning it.

Any chance you can post whatever agreement specifically mentioned the 14 day period?

We don't know the agreement that this is laid out in, it was communicated verbally by customer service.
posted by saraswati at 9:20 AM on November 30, 2006

There is a law saying that if you receive merchandise by mail that you didn't order, then you are entitled to keep it without payment. I think this was set up to deal with unscupulous vendors, sending items along with an invoice. A certain percentage of people will go ahead and pay. This may be what you have in mind.

But your situation is different. You sent an item for repair, and they fulfilled their obligation by sending you a new laptop. Then they accidentally sent the repaired one as well. I don't think this would fall into the category of merchandise you didn't order. I'm sure the warranty states they will send you a repaired laptop within 14 days OR a new one.

After all that... it all comes down to doing the right thing. As said before: send one back. Don't worry about the legal loopholes.
posted by The Deej at 9:23 AM on November 30, 2006

Huh. 'decent human being' OR 'keep both of them'. That's a pretty high bar.

Send them a letter (snail mail) informing them of their mistake, and tell them they have 14 days to come and pick the used/repaired one up. I don't see an obligation to do anything more than that.
posted by Rumple at 9:24 AM on November 30, 2006

Yes, they could have legal grounds for asking you to send it back. The question can get more complicated than that, and would require some research, but my gut reaction is, a mistake is a mistake, and not a gift.

If they send you two laptops, keeping both might run afoul of breach of contract if the contract has terms regarding this stuff, and more likely breach of the covenant of good faith and fair dealing.

I am a lawyer, but I am not your lawyer, and this is not legal advice.
posted by kingjoeshmoe at 9:34 AM on November 30, 2006

The law is this: mailing of unordered merchandise.

However, it doesn't apply here. In this case, the laptop was mailed by mistake. The company is not attempting a scheme of trying to mail you goods and then bill you for it; they just sent you something accidentally. If you come into possession of someone else's property accidentally, the lawyers call it conversion, or even more specifically, detinue. Yes, Gateway will have a valid claim against you in a court of law.

You should offer to return one of the laptops to Gateway at their expense.
posted by jellicle at 9:35 AM on November 30, 2006

Thanks everyone. Thanks especially for that link, jellicle. The unordered merchandise law was what I was confusing here.

For the record the laptop is of course going back. I only asked the question as a matter of personal curiousity.
posted by saraswati at 9:47 AM on November 30, 2006

Have Gateway send you a pre-paid carton to return the laptop so you won't bear mailing cost or liability if something goes wrong in the mail
posted by The Deej at 10:36 AM on November 30, 2006

What the Deej said. When you talk to them and explain the situation, depending on what the refurbished model is worth, they might just tell you to keep it....
posted by jaysus chris at 12:51 PM on November 30, 2006

The actual shipping paperwork will define the owner of the goods. In almost every case, you own it the moment it has been shipped ("Free On Board"), not when you receive it. The process of shipping is transferring ownership.

But what everyone said above: ethically you have no choice.

(But I'd keep whichever one seemed better, myself, and indeed expect them to pay for return shipping.)
posted by rokusan at 1:29 PM on November 30, 2006

You can remain a decent human being and not send one back if you are allowing your roommate, whose computer was recently stolen in a robbery, but who is too poor to afford a new computer currently, but needs one to keep up with his/her work at university, to use it. And not just keeping it for personal gain. :)
posted by thisisnotkatrina at 1:32 PM on November 30, 2006

In response to the previous posts, specifically that mentioning detinue as their remedy.
This is not true at all. Detinue and conversion(and trespass to chattels) involved the interference with their posession of goods, or right to possession of goods, which were waived when they were sent to you. They would not have a valid claim under that branch of law, until they asked for it back.

The only valid claim they would have is in unjust enrichment. This claim, made in equity(not in law), only allows one remedy, restitution, which means that all they could ask for is to get it back. They can not ask for damages, as would be possible in a claim of detinue. In addition, if the value of the computer dropped $500 from when they sent it to you to when they wanted it back(which usually happens as soon as I gain possession of a computer), detinue would allow them to claim the higher price, while UE would only let them claim the lower price, or ask for the object back.
posted by newatom at 1:45 PM on November 30, 2006

Based solely from the description/question, I'd say you are owed both. The way that you worded it makes it sound like a certain if-then clause is part of the guarantee for quickness of service, that, if not received within 14 days, you get a new laptop (saying nothing about the fact that you are still owed your original, repaired). Could you post the actual terms clause(s)? It sounds like one of those "if not delivered in 30 minutes, your pizza is free" -- just because it wasn't delivered in 30 minutes doesn't mean you don't still get the pizza, just that you don't have to pay for it.
posted by vanoakenfold at 10:53 PM on November 30, 2006

"It's not like you can still be a decent human being and keep both of them."

It should be noted that I heartily disagree with this statement. I don't think of corporations as on par with people (or animals for that matter) and therefore don't apply the same morality I do in other venues. I'm not advocating either way, but you could keep that laptop and still make any decent human being list I'd ever make.
posted by haveanicesummer at 9:02 AM on December 1, 2006