UK Retailer Goes Legal After Shipping PS Vitas To Customers Who Just Bought A Game

from the seller's-remorse dept

While we've had stories in the past about incorrect items being shipped to buyers, those stories usually involve a complete disconnect from what was wanted to what was actually delivered. The story of a firearm being shipped is of particular note. That said, what happens when customers get a tangentially related item to what they actually purchased?

Take, for instance, the case of customers of one UK store, who gathered a list of people who pre-ordered the Playstation Vita game Tearaway and accidentally shipped them the Tearaway Playstation Vita bundle, which is comprised of both the game and the handheld console. So what did the retailer do when people happily found out they got brand new Vitas along with their game?

They asked for them back. And, when some of those customers failed to return the incorrectly shipped item, they let loose with the threats.

This is our final notice to politely remind you that you did not order, or pay for, a PS Vita and if you fail to contact us by 5pm (UK time) on 10th December 2013 to arrange a convenient time for the PS Vita to be collected we reserve the right to enforce any and/or all legal remedies available to us.
It's understandable that the retailer hoped for the best in the level of goodwill in their customers, but in what realm does it make sense to legally threaten your customers because you screwed up the shipping items? And, as far as legal remedies go, at least one customer rights group in Britain seems to think they're SOL.
British customer rights website What Consumer says "if you've been sent unsolicited goods, you are entitled to treat them as an unconditional gift and do with them as you choose."
Frankly, it's hard to understand what recourse is afforded a company that sends paying customers higher-valued items instead. Regardless, the combination of the response by the affected customers and the Streisand Effect is probably going to make this store instantly regret the decision to go legal.



Reader Comments (rss)

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  1.  
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    blaktron (profile), Dec 12th, 2013 @ 3:18pm

    Unless they can prove that someone outside their organization (that they are not paying for the service) shipped those goods without their knowledge, the shipping of them was a deliberate act (no matter how accidental) and the customers are 100% legally entitled to their Vitas.

     

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    Anonymous Coward, Dec 12th, 2013 @ 3:42pm

    Us has the same law.
    But they are not entitled to keep them, but not required to return them.

     

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    Jon Jones, Dec 12th, 2013 @ 3:55pm

    Seems to be a bit of grey area. Which! and Citizens Advice Bureau are saying they maybe required to return them, due to a clause in the EU distance selling regs, but even they don't seem to be 100% sure.

     

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  4.  
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    Anonymous Coward, Dec 12th, 2013 @ 4:48pm

    Re:

    Actually in the US you are explicitly entitled to keep it. It is one of the few areas of law where finders keepers actually applies. As stated by the USPS itself: http://about.usps.com/publications/pub300a/pub300a_tech_021.htm

     

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  5. This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Dec 12th, 2013 @ 5:34pm

    Every fanboy lusts for the unearned. But common law requires return.

    I do admire how USPS regs, which are inapplicable corporate rules, not law, is trotted out in support of theft. Even Timmy doesn't call for outright theft, only hopes it's okay.

    But it's theft under common law. Just suppose the situation reversed, kids: you somehow put an extra zero on a check, or blindly scrawled on a plastic screen authorization for ten times the amount: you'd be screaming for your money back.

    Common law is what applies equally to all people, and you should learn it, practice it in your own dealings, and require it from others because it's the fundamental equality of law that keeps The Rich from treating you as literally cattle.

     

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    Carl "Bear" Bussjaeger (profile), Dec 12th, 2013 @ 5:42pm

    Re: Every fanboy lusts for the unearned. But common law requires return.

    Not theft. Your babble would be more entertaining, and just possibly mildly useful, if you knew WTF you're talking about. The USPS page doesn't cite the actual law, but the applicable US Code title and section is:

    39 USC 3009 - Mailing of unordered merchandise
    http://www.law.cornell.edu/uscode/text/39/3009

    Specifically: "(b) Any merchandise mailed in violation of subsection (a) of this section, or within the exceptions contained therein, may be treated as a gift by the recipient, who shall have the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender. All such merchandise shall have attached to it a clear and conspicuous statement informing the recipient that he may treat the merchandise as a gift to him and has the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender."

    The US Code " is what applies equally to all people [in the US], and you should learn it".

     

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  7.  
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    btrussell (profile), Dec 12th, 2013 @ 6:08pm

    Wouldn't it be fraud to keep what you know you didn't order? Or is it only fraud when you get what you ordered? Such as a pic of an xbox.

     

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    Anonymous Coward, Dec 12th, 2013 @ 6:09pm

    Re: Re:

    out_of_the_blue lusts for when due process isn't enforced.

     

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    Anonymous Coward, Dec 12th, 2013 @ 6:11pm

    Re: Every fanboy lusts for the unearned. But common law requires return.

    Actually, all the USPS regulation is doing is restating a section of the 1970 Postal Reorganization Act, which explicitly says that unsolicited goods may be considered gifts, and the recipient is free to do as they wish with the goods, with no obligations whatsoever to the sender.

    Your counter-example doesn't hold up either. In both cases, the person is engaging in a deliberate relationship with a vendor. Unless you are in the habit of writing out checks to Cash and then throwing them at random people; or dashing into businesses, barging behind the counter, hitting random buttons on the cash register, then jumping the counter to sign the signature screen, before running out, the situations are not analogous.

     

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    Anonymous Coward, Dec 12th, 2013 @ 6:30pm

    Re:

    Nope. UK and US law are pretty explicit about this. If you didn't order it, it is yours. Way back in the day, some unscrupulous merchants would send people stuff unsolicited and then demand payment. There was murkiness about if payment was required, whether or not the recipient was required to pay for returning the goods if they didn't want the goods, if the recipient was required to maintain the goods to a certain standard (if I send you goods and don't request them back for 3 years, are you required to hold onto them in secure storage for the interim?). Basically, it would be a bear to deal with all the permutations of this. So Congress and Parliament decided to go the carpet-bomb route: if you send it without a clear agreement, the recipient can consider it a gift - full stop. It basically ended the ability of merchants to play silly buggers with random people. it is also extremely simple to explain to everyone.

    Now, if you want to send the merchandise back, nothing is stopping you - and if you don't want to pay shipping costs, you can contact the sender and they will supply you with prepaid postage. If you want to pay the merchant, nothing is stopping you. If you want to contact the merchant and offer to hold the merchandise until they can come pick it up from your house, nothing is stopping you. But, you are not required to do so.

     

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    Anonymous Coward, Dec 12th, 2013 @ 7:24pm

    I'd send them a picture of my new Vita and a letter that says LOL.

     

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    Anonymous Coward, Dec 12th, 2013 @ 8:48pm

    Re: Re:

    There was murkiness about if payment was required, whether or not the recipient was required to pay for returning the goods if they didn't want the goods, if the recipient was required to maintain the goods to a certain standard (if I send you goods and don't request them back for 3 years, are you required to hold onto them in secure storage for the interim?).


    This was/is a game played by the BassPro Club/Shops. They would send these unsolicited books to members with an invoice then start harassing you about 60 days later if you did not mail back the book or start handing over the cash.

     

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    Violated (profile), Dec 12th, 2013 @ 9:06pm

    xmas

    Since I am a trader of electronic goods then I am well aware that any accidental shipping of the wrong item to a customer or non-customer means they get to keep it.

    The only rule on this is that the package needs to be sent to your name and address when you can't claim a package for your neighbour shipped to your address due to a typo.

    This store can certainly request their return so the correct item can be sent but since these buyers have the lawful right to say "no" then it hardly helps your business reputation to scream and shout at them for your own mistake.

    Well this business sure had a very painful time beyond what I have ever seen, where I would not be surprised if the employee responsible gets fired, but at the end of the day they have to accept that they sent these people an early xmas gift.

     

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    kenichi tanaka (profile), Dec 12th, 2013 @ 9:17pm

    btrussel is an idiot. Here's what he posted:

    Wouldn't it be fraud to keep what you know you didn't order? Or is it only fraud when you get what you ordered? Such as a pic of an xbox.


    First, the xbox picture was a private sale that took place on eBay, an auction website. eBay is NOT a retailer, they are an online auction reseller.

    Second, btrussel gets it completely wrong. The retailer is the one who screwed up by shipping merchandise to a customer that had not been ordered and that they can't expect people to return it.

    btrussel asks if it's fraud to keep it. It absolutely is NOT fraud. Fraud is when you mislead someone into giving you something of value. In this case, it's the retailer who fouled up and sent merchandise that customers did not order. While it technically may not be ethical or moral, it surely is NOT illegal, is NOT fraud and that this retailer needs to look toward the idiots within their business who sent out these PS Vita units.

    If they had sent me a PS Vita, I wouldn't have returned it either. This is a screwup that the retailer is going to have to live with and no court on this planet is going to make a consumer pay for the error of the retailer.

     

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  15.  
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    Spaceman Spiff (profile), Dec 12th, 2013 @ 9:21pm

    Unsolicited goods

    In the USA, the rule is if you are sent unsolicited goods, you own them. If the sender wants them back, then they have to negotiate with you for that. IE, pay appropriate compensations. So, usually that means they may as well just forget about it!

     

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  16.  
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    Mike P, Dec 12th, 2013 @ 9:57pm

    So the consensus is

    not only do they have a right to keep the Vita, but also have the right to demand the game they did purchase or be refunded their money?

     

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  17.  
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    G Thompson (profile), Dec 12th, 2013 @ 10:20pm

    Re: Re:

    I agree wit you, the same law is in Australia and New Zealand as well (mostly covered under either Contract law as inter vivo gifts or Consumer law)

    Though the problem occurs when there has been prior agreements with the consumer and seller ie: if the consumer has shown any intent to purchase by purchasing one item (as in the case here) then the goods non intentionally sent (no invitation to treat) may not be considered unsolicited.

    It boils down to whether or not there was a "reasonable cause to believe that they were delivered for legitimate business" and had not previously agreed to acquire them.

    Thhough interestingly under the UK's Consumer Protection Regulations 2000 there could be criminal liabilities on the seller in question since it is an actual criminal offense to: [regs 24(4), 24(5)(a,b,c)]
    Assert a right of payment for the goods , or
    Threaten to take legal action with regard the goods, or
    Threaten to Place the recipients name on a 'black-list', or
    Invoke or threaten to invoke any collection procedure

    OOPS!!! ;)

     

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  18.  
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    Atkray (profile), Dec 12th, 2013 @ 10:48pm

    Re:

    I'm not sure who but either your or I have a broken sarcasm detector.

     

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  19.  
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    Atkray (profile), Dec 12th, 2013 @ 10:51pm

    Re: So the consensus is

    I wondered how many people when the received the notice to send the Vita back replied "What are you talking about, I'm still waiting for my game?"

     

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  20.  
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    Anonymous Coward, Dec 13th, 2013 @ 12:05am

    Re:

    First, the xbox picture was a private sale that took place on eBay, an auction website. eBay is NOT a retailer, they are an online auction reseller.

    eBay was not(note: different from never) in question, the seller and the buyer were, and the type of transaction they did, which extrangely enough I can't find anywhere the words private or personal to describe any commercial transactions in the actual body of law, still since the law is extensive maybe you can point it out for as all, digressing the law doesn't make a distinction between retailer, person, they are all called merchants, the distinction you make is nonsensical.

    http://www.law.cornell.edu/ucc/2 (US)
    https://en.wikipedia.org/wiki/Uniform_Commercial_Code (US)
    https://en.wikipedia.org/wiki/United_Nations_Convention_on_Contracts_for_the_International_Sale_ of_Goods
    https://en.wikipedia.org/wiki/United_Kingdom_commercial_law (UK)
    The Consumer Protection (Distance Selling) Regulations 2000 (UK)
    http://www.legislation.gov.uk/uksi/2000/2334/made (UK)
    The Supply of Goods and Services Act 1982 (UK)
    http://www.legislation.gov.uk/ukpga/1982/29/contents
    http://www.legislation.gov.uk/uksi/1982/1770 /contents/made

    Second, btrussel gets it completely wrong. The retailer is the one who screwed up by shipping merchandise to a customer that had not been ordered and that they can't expect people to return it.

    Maybe, just maybe you failed to see that there are other options and lights his words could be seen?

    btrussel asks if it's fraud to keep it. It absolutely is NOT fraud. Fraud is when you mislead someone into giving you something of value. In this case, it's the retailer who fouled up and sent merchandise that customers did not order. While it technically may not be ethical or moral, it surely is NOT illegal, is NOT fraud and that this retailer needs to look toward the idiots within their business who sent out these PS Vita units.

    No he noted the similiraties in both instances, one the merchant failed to verify what it sent and it will have to absorb the costs of it and the other the buyer failed to verify what he was ordering and in most cases too would be forced to absorb the costs of doing so, both are not illegal, some may be ethically and morally challenging but not illegal.

     

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  21.  
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    Just John (profile), Dec 13th, 2013 @ 12:17am

    Just to let you know

    Sorry Timothy, I know this doesn't fit the story, but wanted to let you know I added your books to Goodreads.
    https://www.goodreads.com/author/show/3292479.Timothy_Geigner
    Since you are a writer, I was thinking to suggest you to join Goodreads. it is a good site, and I believe owned by Amazon, so could help get you more exposure.

     

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  22.  
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    Mark Wing, Dec 13th, 2013 @ 1:32am

    How do they know I even received it? Maybe it was stolen from my mail box before I checked the mail. But honestly, I probably would return it if the seller wasn't a douche bag about it. If they were, well ... maybe I'd drop it in the toys for tots bin and say "what Vita?" to the seller.

     

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  23.  
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    btrussell (profile), Dec 13th, 2013 @ 1:38am

    Re:

    Hey kid, your internet balls are showing.

     

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  24.  
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    PaulT (profile), Dec 13th, 2013 @ 3:03am

    Re:

    It's probably about control. In the case of anything being dispatched through mail, the seller is the one with the control. They have full knowledge of the condition (or existence) of the item being sold. They are making the claims as to what it is. They control what's shipped and when. They control everything except the financial transaction itself.

    So, the law tends to err on the side of the buyer. There are instances where the buyers are the scam artists (e.g. anyone who's sold on eBay has probably been dinged for not sending items you know were received), but most of the time it's the seller who's the scammer. As AC mentioned, without the law being on the side of the seller, what's to stop people sending out crap people didn't order then threatening legal action if they didn't pay up a premium?

    The XBox picture thing is an old scam, but again it's down to the seller's responsibility. Either it's deliberately worded false advertising, or the seller should have communicated with the buyer to ensure that they were bidding on the right thing when it because clear that the item wouldn't be the one the buyer thought they were buying (as in, nobody would knowingly pay full retail price for a picture of an XBox rather than that actual machine). So, while technically the person got what they ordered, the seller can still be held responsible as the auction can be found to have been misleading.

     

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    Quinn Wilde, Dec 13th, 2013 @ 3:40am

    Re:

    Parent is pretty much correct. They are not required to return them off their own bat.

    However, there's a pretty strong argument that they do have to allow Zavvi to collect them at Zavvi's expense.

    The trick is that these are not unsolicited goods, this is a mistaken shipment. There should have been A shipment, but Zavvi made the wrong one.

    Now if Zavvi had just randomly sent me a Vita, addressed to me, out of the blue, then that would be unsolicited goods and I would be more than entitled to keep it.

    But in ALL of the cases where customers recieved a Vita instead of the game, they were just that - customers. They had placed an order, which was incorrectly fulfilled due to Zavvi making an error in the shipment.

    Under those circumstances the law of unsolicited goods almost certainly does not actually apply.

    The BBC article on this is actually quite good:
    http://www.bbc.co.uk/news/technology-25330615

    The real question for a techdirt regular is not 'Is there some legal loophole that will let these people keep a Vita?'

    As ever, it is 'Could Zavvi have handled this better (i.e. without dropping lawyer bombs)?'

     

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    kenichi tanaka (profile), Dec 13th, 2013 @ 4:08am

    The problem is that the retailer should have just kept quiet about the slip-up and written it off as a loss. Sending out a nasty-gram? This retailer just escalated this error into one major dust storm.

    Personally? I would have kept the PS Vita bundle set as well. And if they tried charging credit cards or bank accounts for the bungled order/purchase, the retailer would be the one facing fraud charges.

     

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  27.  
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    Dark Helmet (profile), Dec 13th, 2013 @ 4:18am

    Re: Just to let you know

    Hey, thanks John. That's hella nice of you. I only wish you hadn't included that Aurora Chronicles piece of shit I self published when I was in my early 20's. Blech. It's a horrible story with horrible writing and edited about as well as an 8 year old's letter to Santa. Typos galore....

    But sincerest thanks on doing that.

     

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  28.  
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    deep64blue (profile), Dec 13th, 2013 @ 4:38am

    Pretty sure What Consumer are wrong, been a long time since I studied law but I think you have a couple of options:-

    1) Do nothing but respond if they ask for the goods back - has to be at their own expense. If no contact for 6 months you can can keep the goods.

    2) Write to the company explaining the issue and giving them a reasonable time period (e.g. 28 days) to collect the goods after which you can do what you want with them.

    If they ask for them back (again has to be at their expense) and you refuse you are in danger of being prosecuted for theft, which is fair enough - you know you didn't pay for them!

     

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  29.  
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    Anonymous Coward, Dec 13th, 2013 @ 4:47am

    I see a huge difference between some company deliberately just out of the blue sending someone some product and then demanding payment for it, and some company making an ERROR on a customer's order (that the customer initiated) and expecting the customer to do the honest decent and moral thing and return it, or make it available to be picked up, at the company's expense. The LAWS quoted here are clearly intended to deal with the former deliberate dirty trick, and not the latter unintentional mistake.

     

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  30.  
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    PaulT (profile), Dec 13th, 2013 @ 4:58am

    Re:

    I'd guess everything would have to be considered on a case by case basis here. The articles don't seem very forthcoming on certain details - e.g. when the orders shipped, how many were shipped in error, etc. I can see evidence here where the retailer is going too far, too quickly.

    For example, while the photographed letter in one of the articles mentions a May order date, the EU release date for the game is listed as 22nd November. Allowing a few days beforehand for early dispatch, you have around 3 calendar weeks between the time the error was made and the final notice was expected to be responded to. That's simply not enough time.

    There's all sorts of reasons why a person would not be able to do this. A person can honestly be away on business or holiday for 3 weeks. Illness and other personal issues can keep people away from home/email. It's near Christmas, so it could take a lot longer than normal for post to arrive. Zavvi offer free delivery on games to many non-UK countries within the EU - but it's not unusual for items to take several weeks to arrive, and I've known simple letters to take months to arrive in Spain.

    I have no doubt that there are some people trying to keep goods they're not entitled to, but I think the retailer are going to far here, and the backlash against them for anyone innocently caught by this is going to be more of a loss than the initial mistake unless the mistake was absolutely massive.

    Sure, the retailer are right to go after them, but whichever way you slice it, this was Zavvi's error. Quickly suing people who didn't correct your error in your preferred schedule really isn't a way to gather customer confidence in your services.

     

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  31.  
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    Anonymous Coward, Dec 13th, 2013 @ 5:37am

    Re: (deep64blue)

    Wow, it really has been a long time since you studied law... like, never.

    Theft is a crime. Crimes (with certain exceptions) require mens rea, an intent to commit the elements of the crime. Two of the elements of theft in English common law (and as enshrined in statute) are (1) the taking of a thing (2) with the intent to deprive another of its use.

    Clearly, the customers did not take anything; they were sent it. Also, they didn't receive it with the intent to deprive others of its use. So totally not a crime. If there were any crime that it could be considered, that would lead to the ridiculous proposition that ANOTHER PARTY can cause you to commit a crime, without meaning to.

    I don't think it can be considered unsolicited, however. They solicited a game, but were sent something else. Their failure to return it (at the sender's expense, of course), might rise to the tort of unjust enrichment (a civil basis for a monetary judgement). The costs of pursuing that seem prohibitive however.

     

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    Anonymous Coward, Dec 13th, 2013 @ 6:05am

    Maybe they should use this experience to improve their "send the damn correct product" department, seems both sides would benefit

     

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  33.  
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    Anonymous Coward, Dec 13th, 2013 @ 6:07am

    Response to: Anonymous Coward on Dec 13th, 2013 @ 6:05am

    Instead of using a third party (law) to THREATEN prosecution

     

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  34.  
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    John Fenderson (profile), Dec 13th, 2013 @ 9:28am

    Re: Re:

    Zawi should have send him a nice letter explaining that they made a mistake, but he can keep the device anyway as a thank you gift for being a loyal customer.

    Boom. That's how it's done.

     

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    John Fenderson (profile), Dec 13th, 2013 @ 9:30am

    Re: Every fanboy lusts for the unearned. But common law requires return.

    Common law is what applies equally to all people, and you should learn it


    Physician, heal thyself.

     

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    Not an Electronic Rodent (profile), Dec 13th, 2013 @ 9:34am

    Re: Re: Every fanboy lusts for the unearned. But common law requires return.

    The USPS page doesn't cite the actual law, but the applicable US Code title and section is:
    Unless I'm missing something in the article, neither actually seem terribly relevant. I know the UK government pretty much does anything the USG says, but I don't think US laws or industry regulations apply to UK shopping yet...

     

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  37.  
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    John Fenderson (profile), Dec 13th, 2013 @ 9:35am

    Re:

    If they had sent me a PS Vita, I wouldn't have returned it either.


    I would have returned it, but at my convenience, not on the retailer's schedule. And the second I got a nastygram from them about it, I'd just sell the thing and spend the money on a nice treat for myself.

     

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    Not an Electronic Rodent (profile), Dec 13th, 2013 @ 9:41am

    Re:

    the customers are 100% legally entitled to their Vitas.
    Well, What Consumer seem to agree with you:
    British customer rights website What Consumer says "if you've been sent unsolicited goods, you are entitled to treat them as an unconditional gift and do with them as you choose."
    Which, if true, possibly offers an interestingly ironic comeback to the legal threats... If the wrongly shipped item is considered a "gift", the customers have yet to receive the items they did order and presumably paid for up front.
    Were I them, in the face of a threat like that without teeth, I might be tempted to demand they fulfil the contract of sale or offer a refund just to rub salt into the wound...

     

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  39.  
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    BernardoVerda (profile), Dec 13th, 2013 @ 6:57pm

    Re:

    Whether the customer is *legally* entitled to keep the Vita is beyond by competence. Morally, I would consider that dependent on if and how the seller wanted to fix the matter.

    But the smart thing for the seller to do, would have been to apologize for the error, arrange for (and pay for) pick-up or re-shipping, and offer some sort of suitable consideration for the customer's trouble.

    This could have been an opportunity for a little bit of good press (expensive, but would have buttressed a reputation for treating customers right). Instead, they multiplied the damage they received from making the error.

     

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  40.  
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    btrussell (profile), Dec 14th, 2013 @ 3:27am

    Re: Re:

    I can remember the Canadian government, years ago, buying a painting of three stripes for millions of dollars. Sometime in the mid to late 1980s' I believe.

    Around the same time people were selling meat dresses for tens of thousands of dollars. But we all know no one would pay that much for meat, right? People are wearing(?) these, so I can't see it being too many hundreds of pounds of meat.

    Nobody would pay that much money for a dress to wear once either, right?


    Would you like to buy a picture of my laptop for $400? If not, do you mind if I ask someone else?

    I paid $8 500 for my dirt bike. It will be two years old by next season. The ownership will be signed over for no less than $10 000. You don't have to buy it. You can get a new one for the same price I paid or you can come and get mine. The choice is yours.

     

    reply to this | link to this | view in thread ]

  41.  
    icon
    btrussell (profile), Dec 14th, 2013 @ 3:35am

    Re: Re: Re:

    Forgot to add:

    Free shipping for the picture.
    Extra shipping fee for the dirt bike or arrange your own shipping.

     

    reply to this | link to this | view in thread ]

  42.  
    identicon
    Anonymous Coward, Dec 27th, 2013 @ 6:23am

    Re: Every fanboy lusts for the unearned. But common law requires return.

    Two questions:

    What bearing does US law have in the UK?

    Where did you go to school to become a solicitor in the UK?

     

    reply to this | link to this | view in thread ]


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