unordered merchandise

[jdnewyork10019]

What is the name of your state? NY

I received an item that I had bought online. Without getting into unnecessary details, the transaction was not smooth and the seller proved to be untrustworthy in some respects. However, it would have been a case of All's Well That Ends Well were it not for the fact that in the same package as the ordered and paid-for item was included another item I had not ordered and a message requesting that I either send the latter's purchase price or return it.

Under FTC rules, such unordered merchandise is to be considered a gift and I am not obligated to either pay for it or return it. However, being a decent person and not wanting the unordered item, I e-mailed its sender a reminder of the relevant FTC rule along with an offer to return him the unordered item provided he would send me within a month a specified dollar amount as compensation for its handling and shipping. He replied by e-mail the same day saying he would send the payment that very day. It was a while ago, although the one-month deadline has not expired yet, and I never received it.

I now believe I may have made two mistakes: first, I should have reminded the seller of FTC rules by certified mail w/ return receipt instead of by e-mail; second, I should not have offered to return the item at all, not only because this was not an honest mistake on his part, but also because I am now still entangled with someone I would rather have had nothing more to do with.

My questions:

1. Should I, as a precautionary measure, send the seller a copy of my e-mail to him but by certified mail this time? Should I sign this e-mail or send it as is? Or should I compose a new letter mentioning the FTC rule?

2. Can I withdraw my offer to return the item (and obviously return any shipping & handling payment I may receive subsequently), or am I now legally bound to wait until the deadline I gave him?

3. What are my risks at this point? In other words, what other tricks or abusive tactics can such a dishonest seller come up with at this point concerning this matter?

Thank you in advance for your reply.

 

[racer72]

The FTC rules do not apply in your case. You have an obvious seller/customer relationship and this negates the FTC rules about unordered merchandise. The FTC rules state the merchandise must be unsolicited and that an affirmative response was required by you to the seller. Your order for the other item is considered the affirmative response and it is an obvious error by the seller. The seller is responsible for the shipping costs to return the item though.

 

[You Are Guilty]

Here's NY's law on the issue. Draw your own conclusions:

Unsolicited and voluntarily sent merchandise deemed
unconditional gift.
1. 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 such goods, wares, or
merchandise not actually ordered or requested by the recipient, either
orally or in writing. The receipt of any such goods, wares, or
merchandise shall for all purposes be deemed an unconditional gift to
the recipient who may use or dispose of such goods, wares, or
merchandise in any manner he sees fit without any obligation on his part
to the sender.
If after any such receipt deemed to be an unconditional gift under
this section, the sender continues to send bill statements or requests
for payment with respect thereto, an action may be brought by the
recipient to enjoin such conduct, in which action there may also be
awarded reasonable attorney's fees and costs to the prevailing party.

2. If a person is a member of an organization which makes retail sales
of any goods, wares, or merchandise to its members, and the person
notifies the organization of his termination of membership by certified
mail, return receipt requested, any unordered goods, wares, or
merchandise which are sent to the person after thirty days following
execution of the return receipt for the certified letter by the
organization, shall for all purposes be deemed unconditional gifts to
the person, who may use or dispose of the goods, wares, or merchandise
in any manner he sees fit without any obligation on his part to the
organization.
If the termination of a person's membership in such organization
breaches any agreement with the organization, nothing in this section
shall relieve the person from liability for damages to which he might be
otherwise subjected to pursuant to law, but he shall not be subject to
any damages with respect to any goods, wares, or merchandise which are
deemed unconditional gifts to him under this section.
If after any receipt deemed to be an unconditional gift under this
section, the sender continues to send bill statements or requests for
payment with respect thereto, an action may be brought by the recipient
to enjoin such conduct, in which action there may also be awarded
reasonable attorneys' fees and costs to the prevailing party.

 

[jdnewyork10019]

Let's Try Again...

Thank you for both replies. But I am now more confused than before and feel that my questions were not answered as these responses seem contradictory.

Cases like these sometimes hinges on certain details and in my effort at being concise they were omitted. So here is a more detailed version of the case:

I ordered an item from an eBay seller. After paying for it but before receiving it, I expressed an tentative interest in a second item that he had listed on eBay but whose listing had meanwhile ended. He offered to send me this second item directly with an invoice as its price had now changed (but he never quoted me the new price, so I could not possibly make a purchase decision).

I replied by explicitly stressing that: 1) I would not make a purchase decision on the second item until the first transaction had been completed, i.e. until I had first received the first item.; 2) I would not deal outside of eBay, so the item would have to be relisted, although I explicitly wrote that I was not requesting such a relisting (it would have to be at his own inititiative) because that would be against eBay policy; 3) I would obviously have to know the new price before making any decision.

He nevertheless sent me the second item along with the first. He included in that mailing the second item's new price and asked me to buy it or return it. Given my prior specific request for him not to do such a thing, this was NOT an "error", let alone an obvious one, by the seller. Instead, it was clearly the well-known selling tactic condemned as abusive by the FTC.

My order for the first item PRECEDED any mention of the second, so how can it be construed as an affirmative response to his offer to send me the second item, since this offer not only came AFTER my said order but was also DECLINED by me?

If what racer72 said was true, this would mean that anytime one orders any merchandise, one could run the risk of receiving additional unordered merchandise and be compelled to go through all the trouble of handling & shipping it back, while being compensated only for the shipping cost... This insults my intelligence. It would mean that the abusive selling tactic of unordered merchandise would be considered acceptable since this tactic relies precisely on the recipient of unordered merchandise feeling that it may not be worth the trouble of sending back an item (waiting in line at the post office, etc.).

So here are now the new questions:

1. Can this unordered second item be considered a gift or not?

2. If yes and I offer to return it nevertheless, can I impose the following conditions: a 30-day deadline on my receiving payment for its shipping; a reasonable handling charge in addition to the shipping one; a certain mode of payment, such as a postal money order, so that I don't have to waste extra time depositing a check, for example?

3. If it is a gift, can I withdraw my offer to return it, if I have a change of heart about it, before the deadline I gave?

Thank you in advance for your answers.

 

[You Are Guilty]

So here are now the new questions:

OK, here are old answers.

1. Can this unordered second item be considered a gift or not?

A definate "maybe". Don't forget, FTC = federal and NY = state, two different sets of rules. I would have no problem arguing it was unsolicited in court though, assuming your version of events is accurate. (Seller would have to argue you verbally agreed to purchase it, in which case the evidence to support that argument doesn't logically add up.)

2. If yes and I offer to return it nevertheless, can I impose the following conditions: a 30-day deadline on my receiving payment for its shipping; a reasonable handling charge in addition to the shipping one; a certain mode of payment, such as a postal money order, so that I don't have to waste extra time depositing a check, for example?

You can impose any conditions you want, if it is "unsolicited", since if it is, it's yours to do with as you wish. (If it's not legally unsolicited, then you are required to follow the merchant's terms for returns. If none exist, you have 30 days).

3. If it is a gift, can I withdraw my offer to return it, if I have a change of heart about it, before the deadline I gave?

If it's a "gift", you can do all sorts of mean and nasty things to the merchant, from filling it with poop and returning it, to sending him pictures of your bare ass sitting on it. If it's a "gift", it's yours. Of course, the question really is how much you're willing to bet that a court would side with your interpretation of the item. Another consideration is the seller's state, as if it's not NY, there are issues with proper venue should someone sue (not to mention other state's unsolicited merchandise laws).

Thank you in advance for your answers.

Welcome.

 

[jdnewyork10019]

Getting there...

OK I got the answers. I failed to mention that along with the item was a handwritten and signed message from the seller confirming in so many words that it was not an order. So I think that question is now resolved and it is a gift from what you say and what I had correctly assumed, until racer72 made me wonder. Also, I had accessed the federal rules on the FTC website and they match the NY ones you posted in your answer. I just want to get the whole thing over with, not get back at the seller. It's just that he had said he would mail me the shipping & handling payment on a certain date and it's long overdue (although still not past my deadline) and I was wondering if he had changed his mind and was up to something else... But I think that it's his problem.

But now you raised another issue concerning jurisdiction: Shouldn't the state laws that would apply in this case be that of my state? It would seem unfair otherwise. And, in general, shouldn't the venue in the case of someone initiating a lawsuit be in the defendant's state?