Third Party Seller sends incorrect item

[Ben75]

My Location: Indiana
Third Party Seller: Georgia
Newegg: California

I ordered a desktop processor through Newegg from one of their third party sellers, who subsequently shipped me a network card instead. The circumstances aroused my suspicion, and I was fearful that returning the item would not result in a refund. While I have taken pictures, in sending the item back I would be parting with the evidence of what transpired.

Made numerous attempts to communicate this to the seller, but all of my inquiries were ignored. They only asked me to file a return request, but to do so I would have to agree to pay for return shipping plus a 30% restocking fee (for an incorrect item!) which were never part of the original agreement. The seller, however, simply claims that "this is our basic return policy."

Seems to me that failure to deliver the item agreed upon constitutes a contractual breach. As such, wouldn't any such "return policy" be null and void, being predicated on the fulfilment of the contract? They didn't ship a defective item - they shipped something altogether different from what I ordered.

I got nowhere with Newegg on the matter, and now I feel I've exhausted all efforts to even get Newegg or the seller to respond to my concerns. I am considering filing in small claims, but I don't know who I would name as a defendant...Newegg invoiced me, but the seller shipped the incorrect item. ???

In any case, I need some advice to get my money back.

Thanks

 

[LdiJ]

My Location: Indiana
Third Party Seller: Georgia
Newegg: California

I ordered a desktop processor through Newegg from one of their third party sellers, who subsequently shipped me a network card instead. The circumstances aroused my suspicion, and I was fearful that returning the item would not result in a refund. While I have taken pictures, in sending the item back I would be parting with the evidence of what transpired.

Made numerous attempts to communicate this to the seller, but all of my inquiries were ignored. They only asked me to file a return request, but to do so I would have to agree to pay for return shipping plus a 30% restocking fee (for an incorrect item!) which were never part of the original agreement. The seller, however, simply claims that "this is our basic return policy."

Seems to me that failure to deliver the item agreed upon constitutes a contractual breach. As such, wouldn't any such "return policy" be null and void, being predicated on the fulfilment of the contract? They didn't ship a defective item - they shipped something altogether different from what I ordered.

I got nowhere with Newegg on the matter, and now I feel I've exhausted all efforts to even get Newegg or the seller to respond to my concerns. I am considering filing in small claims, but I don't know who I would name as a defendant...Newegg invoiced me, but the seller shipped the incorrect item. ???

In any case, I need some advice to get my money back.

Thanks

How did you pay for the item?

 

[Ben75]

Paid by debit card. I've already been to my bank and filed a dispute, but MasterCard wants an admission by the seller that they shipped the wrong item. Fat chance there, and MasterCard won't even consider any of the physical evidence.

The seller will not even confirm they've investigated the matter. They have confirmed, however, they will do nothing until I agree to pay more $$$. The restocking fee they want amounts to another $150.

I've even asked if they would credit me if they could confirm the wrong item should I return it but they won't even respond to that question. I've made every effort to work within their framework.

 

[Zigner]

I've made every effort to work within their framework.

Except for returning the item.

 

[NIV]

Except for returning the item.

Sure. But, that part of the framework costs the OP 30% for something he claims he has no fault in.

Without getting into problems of proof (Which seems severe.), the OP ordered a chip and got a card. At common law there would be a violation of the warranty of merchantability, breach of contract and, with the UCC, failure of tender.

The underlying contract can change many things in regards to rights and remedies. But, it can't change a card into a chip. I'd notify the companies (newegg and third-party seller) by letter (Some like certified.) you don't accept the item shipped as conforming to your contract and then ask for instructions. While the rules in the UCC on what to do may not apply here in the way we are used to, they are still a reasonable path to follow when trying to legally resolve any situation like this. If I were he, I'd read article 2 of the UCC.

 

[Zigner]

Sure. But, that part of the framework costs the OP 30% for something he claims he has no fault in.

It *might* cost the OP 30%, or, about $150. Right now the OP is out $450. If he sends it back, he's only out $150 (plus a few dollars for shipping), and might not be out anything at all if the vendor recognizes the error and corrects it. From the vendor's point of view, all they now have is a guy who claims he didn't get the right item. Nobody EVER lies about such a thing, right?

 

[NIV]

It *might* cost the OP 30%, or, about $150. Right now the OP is out $450. If he sends it back, he's only out $150 (plus a few dollars for shipping), and might not be out anything at all if the vendor recognizes the error and corrects it. From the vendor's point of view, all they now have is a guy who claims he didn't get the right item. Nobody EVER lies about such a thing, right?

If things are not as the OP says, we are not smart enough to give tips on how to fraudulently obtain money from the company so he has to seek help elsewhere.

As for the "might", the seller has a duty to fix the problem. The OP only has a duty to notify them of the error and protect the item reasonably until they get instructions for how to return it with little effort and no cost to the OP. I don't see why he should give up all the power of the situation just to gamble $150 that rightfully belongs to him already. (Or, the correct item.)

I'm not going to get into this next part but to say it; some would claim this is unsolicited merchandise and deal with it that way. I am not of the opinion the law is as some say in regards to if this situation fits the term "unsolicited". I just know that some claim it is.

 

[Zigner]

If things are not as the OP says, we are not smart enough to give tips on how to fraudulently obtain money from the company so he has to seek help elsewhere.

The POINT is that the vendor has probably been burned in the past, thus they are taking a hard-line stance on this.

As for the "might", the seller has a duty to fix the problem. The OP only has a duty to notify them of the error and protect the item reasonably until they get instructions for how to return it with little effort and no cost to the OP. I don't see why he should give up all the power of the situation just to gamble $150 that rightfully belongs to him already. (Or, the correct item.)

Sure, it's the seller's duty. Now that we've agreed on that, let's move on to the real world. If the OP wants to seek redress through the courts, it's going to cost him considerably more than $150 in non-compensable costs to do so. It's really just a business decision.

 

[quincy]

Ben75, you should ask the seller for a return shipping label. If you have made it clear to the seller that you are rejecting the goods as "nonconforming" (not what was ordered), you can hold the item using reasonable care to protect the item from damage until the seller accepts return of the item at his expense.

You are not legally obligated to accept or pay for items not ordered.

Cite for the seller the Uniform Commercial Code, section 2-601 et seq and the FTC.

 

[Zigner]

Ben75, you should ask the seller for a return shipping label. If you have made it clear to the seller that you are rejecting the goods as "nonconforming" (not what was ordered), you can hold the item using reasonable care to protect the item from damage until the seller accepts return of the item at his expense. You are not obligated to accept or pay for items not ordered.

Cite for the seller the Uniform Commercial Code, section 2-601 et seq and the FTC.

The problem here is that the OP is already out the $450, so the consideration of any obligation to accept or pay for the item is really moot (from a real-world standpoint.) Right now, the OP is out $450. If he returns the item, he's out $150 and, maybe, nothing once the seller receives the item back and fully investigates this.

 

[quincy]

The problem here is that the OP is already out the $450, so the consideration of any obligation to accept or pay for the item is really moot (from a real-world standpoint.) Right now, the OP is out $450. If he returns the item, he's out $150 and, maybe, nothing once the seller receives the item back and fully investigates this.

He should not pay for shipping the item back. He should dispute the $450 and wait for instructions from the seller on how to send the item back at seller's cost.

If the seller gives no instructions within a reasonable amount of time, the buyer can reship to seller COD.

 

[Zigner]

He should not pay for shipping the item back. He should dispute the $450 and wait for instructions from the seller on how to send the item back at seller's cost.

He's disputed it and the bank has refused his dispute. The seller won't pay for shipping (but,c'mon, we're talking <$10 here).

If the seller gives no instructions within a reasonable amount of time, the buyer can reship to seller COD.

Which will leave the OP in the same spot as the route I am suggesting (except for the aforementioned <$10 in shipping costs)...and it's going to be at least a month down the road to get to that same point.

 

[Ben75]

Thanks for all of the responses.

Just to be clear in case anyone is wondering: I don't want the network card and have no desire to keep it for any reason. I am only holding it because I think it would be foolish to send it back without clarification on their part, or absent any kind of understanding. The main problem has been their evasiveness and/or silence on certain issues. Perhaps some specificity will make things clearer:

One of the first things they did was direct me to their website to request a return label. Problem is, when you go through this process the only way to make the official request is to click "I agree" on their stipulations, which involve a 30% restocking fee as well as covering return shipping charges. When I sent an email to their customer service I inquired about this because it was not part of the original agreement and I would not agree. Specifically, I wanted to know if they were waiving the restocking fee and pay for shipping. If they agreed, I might have paid for shipping and returned the item if I could be reasonably assured they were actually conducting an investigation and working with me.

But no, they refused to even respond to my questions and would not clarify, and instead sent me a return label billed to me. I repeated my questions and again, nothing. This is why I continue to hold the item. If I slap their label on it and send it back then that could be construed as evidence I have agreed to their terms, not to mention I'm surrendering evidence.

(On that note, the box they sent me the network card in is 12 x 10 x 8 and the UPS label shows 3 lbs. As I'm sure you know a desktop processor comes in a small box and, according to Intel, the shipping weight is 12 oz. It'd be difficult for a judge or anybody not to conclude they shipped the wrong item. I work in shipping myself, and know it's fairly easy to recover these details on your UPS account if there is a question. This is another reason I'm suspicious - they could have looked at this info and immediately seen something was wrong. They wouldn't even ask for pictures or any of this info but I sent it anyway. They just ignored it.)

I think my next step is to start sending form letters and legal notices. But that leads me back to my original question: if this is indeed a breach of contract, then who breached? Newegg or the seller? Newegg invoiced me and I paid them, but the Newegg invoice identifies the seller. Just want to be sure about this before I proceed - it's obviously going to affect the language I use in my correspondence.

 

[Zigner]

Thanks for all of the responses.

Just to be clear in case anyone is wondering: I don't want the network card and have no desire to keep it for any reason. I am only holding it because I think it would be foolish to send it back without clarification on their part, or absent any kind of understanding. The main problem has been their evasiveness and/or silence on certain issues. Perhaps some specificity will make things clearer:

One of the first things they did was direct me to their website to request a return label. Problem is, when you go through this process the only way to make the official request is to click "I agree" on their stipulations, which involve a 30% restocking fee as well as covering return shipping charges. When I sent an email to their customer service I inquired about this because it was not part of the original agreement and I would not agree. Specifically, I wanted to know if they were waiving the restocking fee and pay for shipping. If they agreed, I might have paid for shipping and returned the item if I could be reasonably assured they were actually conducting an investigation and working with me.

But no, they refused to even respond to my questions and would not clarify, and instead sent me a return label billed to me. I repeated my questions and again, nothing. This is why I continue to hold the item. If I slap their label on it and send it back then that could be construed as evidence I have agreed to their terms, not to mention I'm surrendering evidence.

(On that note, the box they sent me the network card in is 12 x 10 x 8 and the UPS label shows 3 lbs. As I'm sure you know a desktop processor comes in a small box and, according to Intel, the shipping weight is 12 oz. It'd be difficult for a judge or anybody not to conclude they shipped the wrong item. I work in shipping myself, and know it's fairly easy to recover these details on your UPS account if there is a question. This is another reason I'm suspicious - they could have looked at this info and immediately seen something was wrong. They wouldn't even ask for pictures or any of this info but I sent it anyway. They just ignored it.)

I think my next step is to start sending form letters and legal notices. But that leads me back to my original question: if this is indeed a breach of contract, then who breached? Newegg or the seller? Newegg invoiced me and I paid them, but the Newegg invoice identifies the seller. Just want to be sure about this before I proceed - it's obviously going to affect the language I use in my correspondence.

You're going to need to work this out with the seller.

As I pointed out, right now you're out $450, but if you send the item back you'll either be out nothing, a few bucks for shipping, or $150. If you decide to hold on to the item, you're out $450 PLUS your time and effort in pursuing legal action that may or may not come to fruition. As I said before, it's a business decision, one that are free to make.

 

[Ben75]

You're going to need to work this out with the seller.

As I pointed out, right now you're out $450, but if you send the item back you'll either be out nothing, a few bucks for shipping, or $150. If you decide to hold on to the item, you're out $450 PLUS your time and effort in pursuing legal action that may or may not come to fruition. As I said before, it's a business decision, one that are free to make.

As the party which invoiced me and received payment, wouldn't Newegg ultimately (from a legal standpoint) be responsible for setting things straight? I guess I'm confused on this point. I'm not sure where to direct my attention as I move forward.