Item sent worth more than what I ordered. Can I keep it?

[LdiJ]

Goodness, I thought the night was late and you had had some adult beverages. Before I start looking up things to show how precisely wrong you are in considering such, I will wait for an affirmation of your claim.

quincy, this is simple UCC. That I have not been insulting is because you give so much and I respect your opinions and information. Please do not go down the path to NutbarFactor6. A seller's mistake does not lead to a buyer's windfall.

https://www.youtube.com/user/NutbarFactor6

I am sorry Tranq but I really disagree with you on this one.

Once upon a time I was CFO for a company that made brass objects. There were two version of each product. One with a normal, high quality finish, and one with a space aged technology that gave it a finish with a lifetime warranty. We could barely tell the two different versions apart ourselves...let alone our customers. Mistakes happened and sometimes people got the three times more expensive version. We would sometimes ask them to return it when it happened, but we knew better than to attempt to take it any further than that. This is no different in my opinion.

 

[tranquility]

I am sorry Tranq but I really disagree with you on this one.

Once upon a time I was CFO for a company that made brass objects. There were two version of each product. One with a normal, high quality finish, and one with a space aged technology that gave it a finish with a lifetime warranty. We could barely tell the two different versions apart ourselves...let alone our customers. Mistakes happened and sometimes people got the three times more expensive version. We would sometimes ask them to return it when it happened, but we knew better than to attempt to take it any further than that. This is no different in my opinion.

That a decision was made to not enforce rights is a business model. It is not the law.

OK. I accept both quincy and LdiJ believe a mistake on the part of a seller can result in the windfall of the buyer. They're wrong, of course, but the law on such matters is pretty basic so it will take me some time to look it up. The cases will probably be back from the 1800's and will certainly not deal with any of the folderol of the unordered merchandise statutes quincy first tried to peddle. (I hope he renounces that claim. I think the basic definitions would defeat that.) Goodness gracious people, THINK about what you are claiming.

 

[quincy]

That a decision was made to not enforce rights is a business model. It is not the law.

OK. I accept both quincy and LdiJ believe a mistake on the part of a seller can result in the windfall of the buyer. They're wrong, of course, but the law on such matters is pretty basic so it will take me some time to look it up. The cases will probably be back from the 1800's and will certainly not deal with any of the folderol of the unordered merchandise statutes quincy first tried to peddle. (I hope he renounces that claim. I think the basic definitions would defeat that.) Goodness gracious people, THINK about what you are claiming.

Goodness gracious yourself, tranquility. Read the sources provided before you start calling any of us wrong.

Here is a direct link to the US Code that single317dad provided earlier and which is cited in both the FTC and the USPS links provided earlier: http://www.law.cornell.edu/uscode/text/39/3009

My earlier post had text directly from the UCC sections you thought applied. Can you see that they don't apply?

But, hey. Knock yourself out going back to the 1800s to see what you can find that overrides 39 US Code §3009.

 

[tranquility]

The only failure was on the part of the seller for delivering to Yortie non-conforming goods which Yortie, nonetheless, accepted and paid for at the contract price. Yortie is not responsible for the error on the part of the seller. Again, see the FTC and USPS links provided in the thread linked to earlier.

So, you agree there was a "mistake". Go back and research that, and the remedies.

Before I write more on how this is not "unordered" merchandise, OP, did you get the drive from a postal worker or from someone in brown or purple shorts?

 

[tranquility]

Goodness gracious yourself, tranquility. Read the sources provided before you start calling any of us wrong.

Here is a direct link to the US Code that single317dad provided earlier and which is cited in both the FTC and the USPS links provided earlier: http://www.law.cornell.edu/uscode/text/39/3009

My earlier post had text directly from the UCC sections you thought applied. Can you see that they don't apply?

But, hey. Knock yourself out going back to the 1800s to see what you can find that overrides 39 US Code §3009.

You are wrong. That you cannot see it is astonishing.

 

[quincy]

You are wrong. That you cannot see it is astonishing.

Please provide proof that I am wrong, tranquility. Thank you.

 

[PaulMass]

The cases will probably be back from the 1800's and will certainly not deal with any of the folderol of the unordered merchandise statutes quincy first tried to peddle.

Pregnant cow?

 

[quincy]

Pregnant cow?

You are referring to Sherwood v Walker, Supreme Court of Michigan, 66 Mich. 568, 33 N.W. 919 (1887)?

That is certainly the time period tranquility is looking at.


"The defendants sold the cow for what they believed her to be, and the plaintiff bought her as he believed she was ... I know of no authority by which this Court can alter the contract thus made by these parties in writing ..."

 

[tranquility]

Please provide proof that I am wrong, tranquility. Thank you.

Please provide the proof you are right. When one makes an astonishing claim, one should be able to back it up with astonishing evidence. We know the common law comes up with a completely different result. Also, the UCC is not as you say regarding acceptance. Your rely upon the federal statute.

There, as in all statutes, the reasons and the history are important to understanding. See:
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2293&context=dlj

There you will find the statute is to prevent consumer fraud of the type I already mentioned. Where a seller intentionally places a burden on another in order to make a sale. It has nothing to do with mistakes. You may also search for the statute in federal cases to find it deals with the practices of a seller as a policy. (Also, if it gives a private right of action and/or what constitutes merchandise. [Credit card offer? Money?]) Find me the case saying loser weeps when something is sent in error.

Dell: "Sorry, but we did not have an 8GB RAM module so we installed a 16GB instead, no charge."
quincy: "That is unordered merchandise as it differs from the specs. I shall treat it as a gift under 39 USC �3009 and cancel my credit card payment.

quincy: "I ordered a pound of coffee. When it got here there was actually 1.001 pounds."
Mailorder coffee seller: "Yes sir, we put a little more in to make sure we get you a full pound."
quincy: "I requested a pound. I shall treat it as a gift."

I was going to give more to deal with each specific objection that an unreasonable person might bring up, but won't.

I am disappointed you give the OP the risk of losing a lawsuit and have a judgment against him because of what you feel unsolicited merchandise means when you are usually the first to tell a person to see an attorney when there is risk. A mistake on the part of the seller is not merchandise mailed (We have not established "mailing" as yet either.) without the prior expressed request or consent of the recipient. Sure, if the company routinely does such an upgrade and demands payment or does other acts to indicate it should be covered by fraud statutes, it certainly could be. That is why the FTC writes:

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.

The reason to do this is, if the seller does not respond appropriately (As this seller did.), then when the burden of proof falls on the seller to show it was a mistake and not a sales gimmick, the buyer has an argument.

As for me, I think I'm done here. Not just here, but on the forum. At least for awhile. I see nonsense and it makes my blood pressure rise. My leaving is not having to do with others posting as I love to argue with the best. It has to do with me.

Merry Christmas or whatever non-secular season's greetings to all.

 

[quincy]

Please provide the proof you are right. When one makes an astonishing claim, one should be able to back it up with astonishing evidence. We know the common law comes up with a completely different result. Also, the UCC is not as you say regarding acceptance. Your rely upon the federal statute.

There, as in all statutes, the reasons and the history are important to understanding. See:
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2293&context=dlj

There you will find the statute is to prevent consumer fraud of the type I already mentioned. Where a seller intentionally places a burden on another in order to make a sale. It has nothing to do with mistakes. You may also search for the statute in federal cases to find it deals with the practices of a seller as a policy. (Also, if it gives a private right of action and/or what constitutes merchandise. [Credit card offer? Money?]) Find me the case saying loser weeps when something is sent in error.

Dell: "Sorry, but we did not have an 8GB RAM module so we installed a 16GB instead, no charge."
quincy: "That is unordered merchandise as it differs from the specs. I shall treat it as a gift under 39 USC �3009 and cancel my credit card payment.

quincy: "I ordered a pound of coffee. When it got here there was actually 1.001 pounds."
Mailorder coffee seller: "Yes sir, we put a little more in to make sure we get you a full pound."
quincy: "I requested a pound. I shall treat it as a gift."

I was going to give more to deal with each specific objection that an unreasonable person might bring up, but won't.

I am disappointed you give the OP the risk of losing a lawsuit and have a judgment against him because of what you feel unsolicited merchandise means when you are usually the first to tell a person to see an attorney when there is risk. A mistake on the part of the seller is not merchandise mailed (We have not established "mailing" as yet either.) without the prior expressed request or consent of the recipient. Sure, if the company routinely does such an upgrade and demands payment or does other acts to indicate it should be covered by fraud statutes, it certainly could be. That is why the FTC writes:
The reason to do this is, if the seller does not respond appropriately (As this seller did.), then when the burden of proof falls on the seller to show it was a mistake and not a sales gimmick, the buyer has an argument.

As for me, I think I'm done here. Not just here, but on the forum. At least for awhile. I see nonsense and it makes my blood pressure rise. My leaving is not having to do with others posting as I love to argue with the best. It has to do with me.

Merry Christmas or whatever non-secular season's greetings to all.

I think I already provided what I needed to provide (and insult-free, I might add), although you can note that the seller did not notify the buyer for one month after delivery, after the hard drive had been accepted by the purchaser, paid for, and put to use.

There is no point in me adding anything more except the following:

All posters who come to this site should consult with an attorney in their own area for advice that is specific to the facts of their situation.

NO posting or thread on this forum should ever be taken so seriously by anyone that it starts to affect their health.

I wish you a good, restful, low-blood-pressure type of holiday season, tranquility. We all hope to have you back to the forum, if not before the New Year, then certainly soon after.

 

[Yortie]

My apologies for the late reply, has been a busy holiday season!
I talked to a local lawyer who is a friend, and they thought there would be no case (FTC unordered merchandise rule); although they did not work with consumer law regularly so they weren't completely sure.

It was delivered by USPS if that would of made a difference. I believe the company may have contacted the police after it was missing during an inventory check, assuming it had been stolen.

 

[quincy]

My apologies for the late reply, has been a busy holiday season!
I talked to a local lawyer who is a friend, and they thought there would be no case (FTC unordered merchandise rule); although they did not work with consumer law regularly so they weren't completely sure.

It was delivered by USPS if that would of made a difference. I believe the company may have contacted the police after it was missing during an inventory check, assuming it had been stolen.

I agree with your local lawyer.

But, as noted earlier, it was probably smart for you to send the hard drive back - if for no other reason than, by sending the hard drive back, it may have helped you avoid the type of arguments with the seller that can be found in this thread.

Good luck.