Can I recover goods sent out in Error?

andy_kos · Aug 24, 2007

I run a business selling via Mail Order and the internet. Occasionally mistakes happen, and a parcel gets mislabelled. Every time this has happened in the past a quick phone call or email has enable us to collect the incorrectly address item and get it delivered to the intended recipient.

Recently a customer placed an order with us, and due to an error, he was sent his goods in one parcel, and somebody else's goods in a second parcel. He has signed for both parcels, and we have evidence of this from the courier.

When we phoned him and emailed him, he denied receiving the second parcel.

We tried to contact him in writing, and sent a letter via recorded delivery, but he has refused to accept the letter and it's been returned to us, presumable because he spotted something on the enveloped identifying it as being from us.

Ive read in other forums that people seem to believe goods sent in error can be treated as unsolicited goods - however on closer reading of the regulations, it seems that this is the case only if the Supplier/Trader has deliberately sent the goods to the consumer with the intent that they acquire the goods.

In this instance the mistake was caused by a combination of errors, but at no time did we intend to send the second parcel to our customer.

How can I go about recovering this item, and what is THE ACTUAL LAW concerning this? does anyone know? all I can find on forums/advice pages are comment from people who seem to think they know, but cant actually quote anything concrete.

Please dont reply to this post with a link to the DTI/BERR website stating that you can consider unsolicited goods to be a gift.

We didnt intend to send these goods to the customer, therefore they are not unsolicited.

ken_uk · Aug 24, 2007

Im not a laywer, but I would say the goods were unsolicited.

While the recipient is morally wrong, in denying receiving the goods, and not offering to send them back, from their side, they did not order the goods, did not ask for the goods, and did not pay for the goods, so they were indeed unsolicited.

Unsolicited by its nature, refers to the receiver of the goods, ie did they solicit them from you? Whether you meant to send them or not should have no relevance on whether the recipient actually solicited those goods from you or not.... If goods turn up on someones doorstep that they did not ask for, then they are unsolicited - regardless of your intentions.

Remember, your intentions have nothing whatsoever to do with the fact the goods from the recipients point of view were solicited or not.

I would be extremely cautious about demanding payment, as it is a offence to demand payment for unsolicited goods, and I cant see any way these goods could be considered 'solicited' if they were not ordered.

Again, Im not a lawyer, but I cant see how your intentions have any bearing whatsoever on whether the goods were solicited or not...

stugster · Aug 24, 2007

I think I'd disagree, and I'm no lawyer either.

I'd say the goods were not unsolicited. Books from those book clubs are, and by default, they're still the property of the book club until either:

a) you purchase them at the price stated;
b) 6 months (or another time frame as stipulated by law) has passed whereby the book club has NOT requested the return of the books.

ken_uk · Aug 24, 2007

But in the case of books from a book club, the recipient has entered a contract, and is fully expecting those books to arrive.. So they were solicited, as they entered an agreement to have them arrive...

stugster · Aug 24, 2007

I've received books from a book club i never asked for.

ken_uk · Aug 24, 2007

If you were not a member of that book club, and you never signed up to any agreement with them, then they would have been unsolicited, and yours to keep for free

(assuming it was after the change of law 1st Nov 2000, prior to that the situation was different)

andy_kos · Aug 26, 2007

The goods were delivered in error. As I understand it the laws governing unsolicited goods are designed to stop organisations like book clubs sending you a book 'apparently' for free, then demanding payment for it months later. The book club intended to send you the book in this instance, with a view to you acquiring it, and then them trying to make you pay for it later.

I didnt intend for this person to receive item, and I dont intend to send them a bill for it and demand payment - but I do want my goods back.

Let's put it a different way, if I put £50 in an envelope and posted it to someone, and through some error it ended up at the wrong place. If the package appears to be intended for someone else, and you can trace the owner of the money, but you've received it - is it yours?

Surely that's a bit like finding a wallet in the street with the owners name and address in it? You may have found it, but it still belongs to the wallet owner?

ken_uk · Aug 26, 2007

From your original post I thought the parcel was actually addressed to the person, but by mistake.

Is that not the case, was the parcel actually addressed to someone different, or at a different address? Ie, did you address it to someone else, but the courier/postman delivered it by accident, or did you put his name and address on?

If you put his name and address on, it would be like finding an envelope in the street with your name on addressed to you, containing 50 pounds...

ManagingDirector · Aug 29, 2007

a) Did you have a contract/term of sales regarding mistakes/wrong parcel sent out? If not, add it!

b) You are a business, unless you already said and admitted it personally,
say it was an deliberate action from an employee (unless you dont have any - or a hand few) to which you believe as a director/ceo etc. was part of some fraudulent action to which they are holding the goods for someone else in a scam to defraud the company.

Or, if your mail order system is fairly automated you can say you believe the problem wasnt human error but a fault in the system as owned (lets face it you only own a license in most cases, not the actual code) by a third party to which they are to blame due to a "bug" therefore your business done everything to stop such a fault happening but due to circumstances beyond your control you noticed the fault after your courier has delivered the package thus not being able to cancel and get the parcel back to sender.

c) unsolicited? sent recorded?? maybe an exception, did the parcel say "for the intended addressee only"?

d) If he signed for both items... and you have his signature then its fraud for him to lie and deny it. He should be locked up for being so dumb! lol, did he not realised he had to sign for it and its proof of delivery?

e) Get your law firm on him... a simple template letter would make him see sense in most cases!

f) Every time?

If this happens regulary, you need to get to the bottom of the problem. Its a waste of resources and money. I hope you didnt send sensitive information in the wrong parcel too such as credit card details etc.

g) do you have a order number displayed on the parcel? This will be in your favour if its of the other customer. Of course as addressed to him he is entitled to open the package but if the item/s dont belong to him then he needs to return them

ken_uk · Aug 29, 2007

ManagingDirector said:
g) do you have a order number displayed on the parcel? This will be in your favour if its of the other customer. Of course as addressed to him he is entitled to open the package but if the item/s dont belong to him then he needs to return them

If they were addressed to him, and they were unsolicited he does not legally have to return them, nor pay for them, they can legally keep them free of charge. Any attempt to get a law firm on them to force payment could end up in the supplier being prosecuted. Im not a lawyer, but the law seems very clear in that respect regarding unsolicited goods.

Aug 29, 2007

Personally I would have thought that if you sent goods intended for one customer but to another of your customers then they are entitled to claim them as unsolicited goods. If you'd contacted him before receiving the parcel to alert him to the error and to advise that the goods would be collected then you might have stood some chance of pursuing it, but after it's happened then it's too late realistically, as unethical as it is that the customer has behaved in this way it's still not their fault that the goods were sent to them in error and they have a legitimate claim to the items now and as other have pointed out you cannot enforce payment for unsolicited goods.

You need to look into why the errors are occurring and tighten this procedure so this doesn't happen again, then write this off to experience and don't deal with the other customer again.

andy_kos · Aug 30, 2007

Thanks for your comments...

ManagingDirector said:
a) Did you have a contract/term of sales regarding mistakes/wrong parcel sent out? If not, add it! No, didnt think Id need it - but will now amend.

b) You are a business, unless you already said and admitted it personally,
say it was an deliberate action from an employee (unless you dont have any - or a hand few) to which you believe as a director/ceo etc. was part of some fraudulent action to which they are holding the goods for someone else in a scam to defraud the company.

Or, if your mail order system is fairly automated you can say you believe the problem wasnt human error but a fault in the system as owned (lets face it you only own a license in most cases, not the actual code) by a third party to which they are to blame due to a "bug" therefore your business done everything to stop such a fault happening but due to circumstances beyond your control you noticed the fault after your courier has delivered the package thus not being able to cancel and get the parcel back to sender.

System is mostly automated, in this instance it was a combination of system error and human error. We were aware of the problem within 24 hours and contacted the customer to tell him of the error. He flatly denied receiving the second parcel.

c) unsolicited? sent recorded?? maybe an exception, did the parcel say "for the intended addressee only"?

The package was sent via ANC Express, the package had his address on, but didnt state "for the intended addressee only"

d) If he signed for both items... and you have his signature then its fraud for him to lie and deny it. He should be locked up for being so dumb! lol, did he not realised he had to sign for it and its proof of delivery?

This is the point, he has signed for and received the item, but is denying it. I have copies from ANC Express of the POD for both consignments, and he has signed for both.

e) Get your law firm on him... a simple template letter would make him see sense in most cases!

Currently my 'law firm' is my father, he's generally been able to sort out every issue in the 12 years the company has been running.

f) Every time?

If this happens regulary, you need to get to the bottom of the problem. Its a waste of resources and money. I hope you didnt send sensitive information in the wrong parcel too such as credit card details etc.

every time... currently consists of about 20-30 mislabelled parcels in 5 years, during which time we've sent out probably 20000 or more parcels, so if you;re working on percentages its not too bad.

g) do you have a order number displayed on the parcel? This will be in your favour if its of the other customer. Of course as addressed to him he is entitled to open the package but if the item/s dont belong to him then he needs to return them

andy_kos · Aug 30, 2007

boho said:
Personally I would have thought that if you sent goods intended for one customer but to another of your customers then they are entitled to claim them as unsolicited goods. If you'd contacted him before receiving the parcel to alert him to the error and to advise that the goods would be collected then you might have stood some chance of pursuing it, but after it's happened then it's too late realistically, as unethical as it is that the customer has behaved in this way it's still not their fault that the goods were sent to them in error and they have a legitimate claim to the items now and as other have pointed out you cannot enforce payment for unsolicited goods.

Surely the law regarding unsolicited goods is to protect against scams, ie book clubs, etc who send you goods, then an invoice 6 months later even though you didnt order it, and then threaten legal action.

In this case I agree with the law. BUT to try to twist this and claim that goods delivered in error are unsolicited is just wrong, and if the law allow this, surely the law is wrong?

What if it was a box of cash that had been sent out with £50,000 in it? Could you class that as unsolicited goods? Surely not?

You need to look into why the errors are occurring and tighten this procedure so this doesn't happen again, then write this off to experience and don't deal with the other customer again.

The errors dont occur often (as Ive explained elsewhere), and writing this off to experience wont exactly break the bank. Im aware Im probably going to have to do this. My issue here is more the 'principal' - and Im wanting to clarify exactly how I stand. It seems 50% of people seem to think you can twist the law regarding unsolicited goods to mean you can keep something delivered to you in error, and the other 50% think you cant. Ive tried the DTI website (now known as BERR) - but I havent been able to find a detailed explanation of the law on this.

ManagingDirector · Aug 30, 2007

I would personally define unsolicited goods as goods sent to an address with either:

a) "to the householder", "To Managing Director" (not me btw lol), "Chief Executive", "to the owner", "to the manager" as in the to field - so not to a specific entity in respects to a company, organisation or individual but to a job title or how you would approach companies/people with mass mailsorts if you didnt know their name.

b) Goods sent to a person who isn't a client or current customer on a customer base (if you keep records and have "customer accounts")

and/or

c) Goods sent with the intention of not receiving a response to whether the receiver received them (obviously not with the case of recorded delivery)

However, on the side of meaning unrequested (hehe)... stick to your guns, if you are going to stick this under a system error then it was requested (but not by him): you didnt send out the parcel intentionally if you didnt receive the request from the system error!!

--

30 in 5 years isn't bad, but room for improvement... adding the terms would help.

--

He is not to be enforced to pay for the items or to pay for it to be returned but he did aquire goods that he wasnt entitled to (go along with this one, of course he would argue otherwise).

The fact of it being unsolicited isn't really an issue: if he admitted that he received the items then fine, but as he denied it he cant argue for unsolicited as HE HAD TO SIGN FOR THE PARCEL TO RECEIVE IT SO HE REQUESTED IT!! Otherwise, he would have rejected it - however silly that sounds.

Do what the big companies do... leave it out and contact him in 6-12 months requesting him to pay for it PLUS interest.

Offering to refund postage/come collect the parcel IMO would be an adequate solution IMO... so he is being akward. lol

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Can I recover goods sent out in Error?

andy_kos

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Can I recover goods sent out in Error?