Evan Schuman's StorefrontBacktalk

What both the Federal Trade Commission regulation and the Postal Service law were designed to deal with was a practice that was common many years ago of companies sending consumers samples of their products together with the bill for the product. In that case, the products were truly “unsolicited” and the consumer never ordered them and never wanted them. If the consumer didn’t pay for the items sent, the merchant would either continue to bill on, or open the collection action for, the market value of the products “sold.”

Because there was never any contract for sale, the products were never sold, and the process of sending somebody in unsolicited product and the bill for that product constituted a false, fraudulent, and deceptive trade practice. It was this kind of behavior that the Federal Trade Commission was attempting to prohibit. Similarly, the U.S. Postal Service regulations were designed to deal with the same problem.

Partially to punish companies that engaged in this deceptive practice, and partly to take some of the rewards out of it, many states and the federal government passed laws that said that the practice was unlawful, and that consumers did not have to pay for items they did not order. But that’s not what happened in the Best Buy case.

In the Best Buy case, the consumers did in fact order products from the merchant. The merchant simply delivered the wrong quantity of the items. We can imagine all kinds of other “mistakes” that a merchant could make including sending the wrong product, sending the wrong quantity of the product, sending the product to the wrong person, or sending multiple shipments of the product. In those cases, both the legal, and moral, and ethical thing to do from the point of view of the consumer is to simply ship the product back. From the point of view of the merchant, you should make it as easy as possible for the consumer to do this. Thus, a consumer who receives a shipment in error (as opposed to a consumer who receives an unsolicited shipment) would likely be required to return shipment.

The merchant should offer to have the product picked up, or provide a return shipping label to the consumer, and should compensate the consumer for his time and energy required to fix the merchants mistake. If the merchant doesn’t provide a mechanism for the consumer to easily and efficiently send the product back, depending on the value of the merchandise, the consumer would be within his or her rights to simply keep the product.

This is all by way of saying that in this area of the law, like almost every other area of the law, the rules are not particularly clear. The postal statute definition of unsolicited item is so broad that it would include an item shipped erroneously. But obviously that’s not what the statute was intended to deal with. What if Amazon or Walmart.com has a legitimate order for a $150,000 diamond necklace and it charges the customer’s credit card but it accidentally ships it to the wrong customer. Does that recipient have a right to keep or sell that necklace?

Best Buy probably didn’t need to allow the customer to keep the four other iPads. But it was a good business decision to allow them to do so. And good business decisions frequently result in many happy returns. And isn’t that what the holidays are all about?

If you disagree with me, I’ll see you in court, buddy. If you agree with me, however, I would love to hear from you.