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UK Retailer Mistakenly Sends PS Vitas, Threatens Legal Action To Get Them Back
New submitter Retron writes "The BBC brings news that British retailer Zavvi mistakenly sent out PlayStation Vitas to people who had preordered a game called Tearaway. The company is now threatening legal action against those who have kept theirs despite a request to return them. It's unclear whether the Distance Selling Act protects consumers who have mistakenly been sent an expensive item, and forums such as Eurogamer seem divided on the issue."
I'd keep it.
An SQL query goes to a bar, walks up to a table and asks, "Mind if I join you?"
I do not know what UK laws are in this area, but I do know that US laws specifically state that unsolicited merchandise is legally considered a gift. Think about it: if things didn't work this way, you could wind up being billed (and having your credit report dinged) for "debts" you never agreed to! Alternatively, if companies could get away with sending you more expensive merchandise than you actually ordered and then billing you for it (or demanding, after the fact, that you take the time and trouble to send it back to them), then you'd be opening the door to merchants committing all kinds of bait-and-switch scams.
This seems to have been a genuine accident, and sucks for Zavvi, but they should not be allowed to threaten or instigate any legal action against the receivers. Even demanding the recipients mail it back with postage paid by the company is still requiring them to perform unpaid work (packaging, driving to the post office, etc.) for something they didn't do and aren't responsible for.
In the United States getting stuff in the mail unsolicited is considered a gift and is not required to be returned...for the exact reason you specified; I can mail everyone on my block an Ubuntu cd and then claim they owe me $10 for accepting it.
I don't know if a shipping error counts as being unsolicited, but I don't think the company would have any recourse. IANAL.
If you'd read the law, you'd see that this isn't the case. From the relevant law, which is linked to in TFA:
24.—(1) Paragraphs (2) and (3) apply if—
(a) unsolicited goods are sent to a person (“the recipient”) with a view to his acquiring them;
(b) the recipient has no reasonable cause to believe that they were sent with a view to their being acquired for the purposes of a business; and
(c) the recipient has neither agreed to acquire nor agreed to return them.
(2) The recipient may, as between himself and the sender, use, deal with or dispose of the goods as if they were an unconditional gift to him.
(3) The rights of the sender to the goods are extinguished.
Mistakes happen. They weren't expecting them so it shouldn't be too heartbreaking to return them. I'll probably get flamed for this, but you have to be one self-entitled little twerp to expect to be able to keep it. As long as Zawi pays for shipping they have every right to want them back. If you mistakenly shipped something expensive to the wrong address, would you be miffed if they refused to return it? Who wouldn't?
If the situation was reserved, say the customers received £19.99 Tearaway after ordering a £169.99 PS Vita, they would be fighting to return it.
The customers received an item that was worth more than what they paid, and are simply being greedy.
As a general rule you are not the owner of property sent to you in error.
If someone _deliberately_ sends unsolicited property to you, then the usual rule is this is presumptively a gift.
If someone _accidentally_ sends property to you then the usual rule is that ownership is not transferred automatically.
However if you reasonably assumed it was a gift then you might have lost it or sold it thinking it was your own, and since the error was not yours, you would not be liable. On the other hand, it is unreasonable to think a store would send you a video game system for no reason. And a reasonable person who orders something from a store, and recieves the wrong product would first suspect an error on the stores part. If you contact the store and they say "nope it is a gift!" then you can keep it.
No one has a right to their *own* opinion. They have a right to the TRUTH.
The best thing for Zawi to do is probably just call it a loss. They have done the chest thumping and legal threats and probably have gotten most units back. Going to court would probably cost more time and money than the value of the PS. Offer anyone that did send their units back a gift card to reward honesty for a decent amount so no one would think that they would have been better off keeping the PS. The next step is getting your shit together so that it doesn't happen again.
Well, gosh, that'd just make me feel like an idiot if I was one of those that hadn't returned the items. At this point, I think they're past the point of no return - best course would have been to silent about the missing units, show due diligence in re-acquiring product, and move on, but now that they've complained about it won't people wonder what happened?
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Hmm, looks like to me that section (c) would apply. So, unless the customer said they were being returned, no legal obligation to do so.
UK law is clear in that ownership has not transferred to the recipients and that the items should be returned.
I think in this type of situation, it's a reasonable expectation that the recipient should return the PS Vita too. They paid £19.99 and got sent a completely different item; it isn't as if the PS Vita was priced at £19.99 in error and the company mistakenly fulfilled the order.
Sadly, I see similar situations happen all the time. Companies make a mistake with their pricing online and don't fulfil the order and the people who thought they were getting a 40" TV for £50 start talking about their "right" to buy it for that price.
It's an obvious mistake by the retailer and if their customers are being uncooperative then they have every right to pursue the legal avenue. Let's turn it around a bit: if the customers had asked to return the game they bought and accidentally sent a PS Vita to the company, would the customers be arguing that their mistake represented an "unsolicited gift"?
Backup not found: (A)bort (R)etry (P)anic
Customer ordered one thing, company sent another thing and is now threatening them with legal action and fines... sounds scummy to me.
The company should just admit they made a mistake and politely request a return... however, if the customer doesn't want to return it, they don't have to. Company made a mistake and is now acting scummy. Company made a mistake and it will cost them... consequences.
People are always saying the consumers need to be responsible and suffer consequences... this should apply to companies also.
I don't read your sig. Why are you reading mine?
"but you are required by law to return the product if they request it. "
no, you are not.
from USPS( http://about.usps.com/publications/pub300a/pub300a_tech_021.htm ) bolding done by me:
A company sends you a gift in the mail — a tie, a good luck charm, or a key chain. You didn’t order the gift. What do you do? Many people will feel guilty and pay for the gift. But you don’t have to. What you do with the merchandise is entirely up to you.
If you have not opened the package, mark it “Return to Sender.” The Postal Service will send it back at no charge to you.
If you open the package and don’t like what you find, throw it away.
If you open the package and like what you find, keep it — free. This is a rare instance where “finders, keepers” applies unconditionally.
Whatever you do, don’t pay for it — and don’t get conned if the sender follows up with a phone call or visit. By law, unsolicited merchandise is yours to keep.
The Kruger Dunning explains most post on
Here in the US, in order to be considered an "unconditional gift", the shipment must be unsolicited, not just incorrect. An solicited, but incorrect shipment can be recovered by the sender in the US.
APK quotes people (including myself) without context and should not be trusted. Just thought you should know.
The company should just admit they made a mistake and politely request a return...
They did try that first. The customer (singular, that we know of, so far) failed to respond.
[Games blog Dark Zero] published a "final notice" letter sent to one [emphasis mine] Zavvi customer who had originally ordered a copy of the platform game Tearaway.
"As you are aware, as a result of a technical error, you were not sent Tearaway (priced at approximately £19.99) and instead were sent a PS Vita (priced at approximately £169.99). This was an error on our part and we apologise for any inconvenience this has caused you," it said.
Tearaway Affected customers had only expected to receive the game Tearaway
"We have tried to contact you on numerous occasions [emphasis mine] to give you the opportunity to return this item to us (at our cost and no inconvenience to yourself), but to date you have refused to do so.
At this point I'd say the company are reasonable in assuming this guy just wants to keep the Vita despite having no claim to it.
systemd is Roko's Basilisk.
In the UK and Canada they now belong to buyer
No, they don't.
systemd is Roko's Basilisk.
Now how about (a) and (b) which would also have to be true since the word used is "and".
I am not talking about consumer rights, I am talking about the company using their own mistake to make profit. instead, they are spending more for legal action, in addition to lost business and shipping costs, than they could potentially make by advertising their error, and letting the consumer keep the PS Vitas as gifts to the customer from the company for their mistake. By doing this, brand recognition would increase in a positive way, and it creates the possibility for mass spending in hopes of another error. Even if they only gain a handful of customers by doing this, there is a net gain over time. By doing what they are doing now, there will likely be a large number of negative reviews put online, scaring potential customers away. Also, the right to keep them as gifts in this case depends on the country in which the consumer lives.
"A company sends you a gift in the mail â" a tie, a good luck charm, or a key chain. You didnâ(TM)t order the gift."
That is a DIFFERENT thing. This wasn't a "gift" sent in the mail (what the law calls "unsolicited merchandise"). This was a mistake on a legitimate order (solicited merchandise).
Because it isn't "unsolicited" (something sent to you out of the blue), different laws apply. The law you cite simply does not apply to the situation here. (As long as we're talking about U.S. law... I won't speak for the laws in other countries.)
Of course it is considered as an unasked for gift. If it wasn't, the mail order scam of sending out unrequested product would never have gone away. The companies that forced the law into existence would have just switched to offering some low value product at cost and shipping some other product with ridiculous markup. Thus, completely skirting the law.
I'm sorry Mr. Smith, we mistakenly sent you the $99.99 WHITE cheddar cheese log by mistake instead of the $6.99 YELLOW cheddar cheese log. Please return it immediately. Oh, it was eaten at your Christmas party? Just give us your credit card number and we can charge the extra $93.00 to your card.
No UK solicitor would worry about returning the console- the claimable EXPENSE of dealing with Zavvi's negligence would allow the customer to claim far more in 'handling fees' than Zavvi could possibly hope to recover from the value of the hardware. Any interaction with Zavvi over the issue is legally billable (customer billing Zavvi for the use of their time, etc).
While there is no doubt that very large errors in value (sending an item worth thousands to a customer when you meant to send an item worth tens of pounds) would be seen by courts as reasonable to resolve mostly in the retailer's favour, this will not apply to tiny amounts like the value of individual Vita bundles. Companies are EXPECTED to run their business in a competent fashion, and not expect the legal system to pick up the pieces of their uselessness.
-customers are NOT required to do any work on behalf of Zavvi over the mistake. This includes responding to emails or phone calls.
-customers are NOT required to be out-of-pocket to even the slightest degree.
-customers are NOT required to be, to any degree, sympathetic to problems that occur because of Zavvi's gross incompetence
-customers are NOT required to recognise a mistake has been made, if the goods delivered are a 'reasonable' fit to the items ordered (which in this case, interestingly, they are).
Zavvi has a right, at its own expense, to make an attempt to rectify the mistake. This pretty much, in the worst case, means cold-calling the customer, and hoping to speak to the customer (rather than another householder who has ZERO connection to the sales contract) in order to ask for the parcel back.
However, if the customer thought the delivery was legitimate (and that would be very hard for Zavvi to disprove) and disposed of the goods (say as a gift to someone) before receiving notice from Zavvi that a mistake had been made, Zavvi essentially is stuffed even in the case of cold calling the customer.
For the customer, the safest legal play is to put the 'mistaken' product somewhere safe, ignore contact from Zavvi about the issue, and wait for Zavvi to give up (as their legal advisers will tell them they have no choice but to do). In this way, IF zavvi attempted any legal action, the customer merely has to state that Zavvi could, at any time, at THEIR expense, have turned up in person as many times as required, until they managed to speak directly with the customer, to reclaim their Vita. The customer can then add that under no circumstances were they prepared to use any aspect or amount of their own time to remedy Zavvi's mistake, without billing that time at far more than the Vita was worth.
Worse, for Zavvi, is that the customer can actually charge storage fees for safely looking after the mistaken parcel. This is why I said at the top that no solicitor- well versed in law and billing people for every action, would return a negligently sent item worth so little.
To my American readers, I should point out that no British computer/electronics retailer ever reaches anything approaching the size of the most successful in the USA, because of the horrendous "the customer is always wrong" attitudes held by people who run such businesses in the UK. British companies love to screw any customer naive enough not to understand their legal rights, especially over returns of non-functioning goods.
PS I have actually seen the usual vile shills telling people that even if the law is on their side, they have a MORAL duty to return the goods. This in a world where companies like Zavvi, Apple, Amazon etc state that they will happily pay as little tax as possible, because of loopholes in the law, regardless of how much money they make in profits. NOBODY has any moral duty to a corporation. The ONLY reason to treat a company nicely, or forgive their idiocy, is if you are grateful they exist, and fear that if they go down the alternatives will be worse for you. Enlightened self interest, in these circumstances, and nothing else.
The story stays Zavvi says "We have tried to contact you on numerous occasions to give you the opportunity to return this item to us (at our cost and no inconvenience to yourself)."
So let's use some common sense here. Assuming they were telling the truth... if a company called me and explained the error, apologized, issued no threats, but ASKED me to send it back, offered to send me a prepaid return sticker, and offered to schedule a pickup if I didn't want to take it to a dropbox, I wouldn't fuss. To me, it would all be about the amount of work I'd have to do to return it. Make it easy for me to do, sure I'd do it.
The legal threats are stupid. Their percentage of returns acting nice will be as large or larger as the results of acting nasty. And if they take legal action they'll not only occur expenses, they'll turn every one of those customers into enthusiastic broadcasters of ill-will.
"How to Do Nothing," kids activities, back in print!
I've had something like this happen twice. The first time a company shipped me something I ordered, and then a few days later something I didn't. I let them know, and they sent me a prepaid return sticker, and scheduled for UPS to come pick it up, they told me to just leave it on my porch.
No problem there, I was happy to get them their stuff back because it wasn't any issue for me. I didn't have to expend any real time and effort fixing their mistake. A quick e-mail to them, and then slap a label on it (they actually mailed me one) and drop the box on my porch.
Another time an eBay seller fucked up an order bad. They shipped some fairly cheap headphones I had purchased to a guy, and instead shipped me two McIntosh monoblock tube amplifiers worth about $10,000 each that he had purchased. I was a little perplexed by these massive 100 pound each boxes when I expected headphones
Well they were annoyed at me that I didn't refuse the delivery "like I should have" (I wasn't there, the apartment manager accepted packages for us) and wanted me to take them to UPS and ship them to the other buyer. They said they'd refund the shipping charge when he got the amps. I told them to fuck off, they could send me shipping labels and have them picked up, or go away. The were butthurt about that, but finally agreed.
So depends on how the company has acted. If they truly are making it no hassle on the part of the customer: As in willing to send them a shipping label (and if necessary a box) and schedule a pickup, then ok. However if they expect the customer to go out of their way to fix the fuckup, then no. Sometimes what they mean by "no inconvenience" is really "We want you to deal with the hassle of a return, then we'll refund you the money for shipping later, maybe."
When they are the ones that fuck up, it is their duty to make it right, with as little impact on you as possible.
The law is intended to provide a fair and moral framework for humans to live by
Considering the state of the world, I don't think that's working out too well.
Filthy, filthy copyrapists!
my understanding is that there used to be a pretty prevalent scam in which a firm would send something of value unsolicited and then bill the recipient. When the recipient did not pay, the firm would harrasss the recipient and do whatever nasty thing they could to get the money. If you were someone that sold stuff like that from Fingerhut, i.e. marking up just 10000%, one could get a pretty penny if even 10% of the recipients were extorted to pay.
To combat this, in the US there are laws, as cited below, that pretty much give huge right to the recipient of unsolicited merchandise. There are two exceptions. Merchandise that is sent for inspection is to be returned. For instance I used to get calls from firms that would offer to send me stuff for free and if I liked it they would then bill the company. The assumption was that the purchasing department in a moderately sized organization would pay for stuff management wanted without too much checking or hassle. The law still provides a level of protection as the merchandise can be returned and the time frame is not set in stone.
My feeling is that, at least in the US, the recipient should be protected. Look at it this way. I order a box of pens from office depot. Instead of pens, the send me a printer. It could be that someone in my office steals it. Am I then liable for the printer?
Yes, you're liable. The difference is that this isn't unsolicited merchandise, this is incorrectly shipped merchandise in response to a solicitation. Rather than meeting the unsolicited merchandise law, this would fall squarely under the Uniform Commercial Code, which has been adopted in some form in every state. Specifically, this is a shipment by the seller of non-conforming goods, which the seller promptly identified. Under UCC 2-508, the seller can notify the buyer of his intention to cure and make a conforming delivery or repudiate the contract. In such cases, the buyer may charge reasonable storage or disposal fees, but that's it.
Consider: the UCC, as well as contract law in general and dating back hundreds of years, was written to protect the ordinary dealings of merchants with each other and merchants with the public. Mistakes happen, everyone knows that... A business shouldn't be unreasonably punished because of a mistake, or else, out of fear of such mistakes, transactions grind to a snail's pace with everyone seeking reassurances in triplicate of every maneuver. This is actually one of the first things they drum into us in contract law that is different from the layman's expectation: normally, we think of breaching a contract as being a terrible thing that leaves you liable to all sorts of bad results; in reality, breaching a contract is merely an economic decision, and the courts will not bankrupt a company in punishment for making a sound business decision of terminating a losing contract, particularly if the other side knows that there's something inequitable. Essentially, tort or criminal law is all about "you wronged me"; contract law is all about "economic efficiency" - the concept of punitive damages only exist in very, very extreme cases.
Here, the merchant is entitled to their Vitas back and owes each buyer the game, any shipping costs, and potentially even reasonable storage fees - which, for a single Vita, are going to be negligible. And this is the way it should be, unless we want every purchase that's not an in-person exchange of goods to come with ten pages of contracts to sign.
It's interesting to see the wide variety of responses to the story. I guess the only way we'll ever know the exact legal situation is if the case makes it to court, but I'd bet that Zavvi will try anything they can to settle out-of-court in order to save themselves the chance of receiving even more bad PR.
It's one of those situations where Zavvi can't win. If they let the person keep the Vita then those who sent them back will be annoyed. If they set the legal eagles loose then it'll just generate more bad PR for them. Zavvi itself had loads of bad PR a few years ago when the original company went bust; it was one of those situations where gift cards weren't honoured during the administration period and the media was full of people moaning about the company. That didn't bother The Hut, though, who bought the rights to the name and then set up a new online shop.
FWIW, my thoughts are that it'd be pretty obvious upon opening the packaging that a Vita+game had been sent rather than just a game. As such, I'd have felt pretty guilty if I'd tried to keep the Vita and I'd hope that I would do the obvious thing and send it back, although it wouldn't be at my expense (a pre-paid Special Delivery label would be my request, as that way the returned package would be insured - sod's law says that it'd go missing on the way back and then you'd have no Vita, no game and would still have the company hounding you for its return!)
The whole sorry mess could have been alleviated by giving a gift voucher upon the return of the Vita, or some other token to say "sorry for messing you around". Doing it the way they did just leaves a bad taste in everyone's mouth!
She likely felt that I was in the wrong for attempting to "steal" it.
Since a similar event involving a prototype iPhone was heavily discussed, I read up a bit on it. In Californian law, it would have been theft if you kept the Mac. In New York law, it would have been theft if you kept it for six months. In many countries, if a place like an airport, or a shop, or a taxi is owned and controlled by someone, then any property at that place is by definition not lost, and taking it when it's not yours is theft. It's like a restaurant storing away my coat while I have lunch and you take it from the place where it is stored. Even though I don't have the coat at the time, it isn't lost, so taking it is theft. For example, picking up someone else's computer in a German airport is most definitely theft.