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.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: mistakes, playstation vita, ps vita, tearaway, zavvi
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
Re:
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...
[ link to this | view in chronology ]
But they are not entitled to keep them, but not required to return them.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
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)?'
[ link to this | view in chronology ]
Re: Re:
Boom. That's how it's done.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Every fanboy lusts for the unearned. But common law requires return.
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.
[ link to this | view in chronology ]
Re: Every fanboy lusts for the unearned. But common law requires return.
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".
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Every fanboy lusts for the unearned. But common law requires return.
[ link to this | view in chronology ]
Re: Every fanboy lusts for the unearned. But common law requires return.
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.
[ link to this | view in chronology ]
Re: Every fanboy lusts for the unearned. But common law requires return.
Physician, heal thyself.
[ link to this | view in chronology ]
Re: Every fanboy lusts for the unearned. But common law requires return.
What bearing does US law have in the UK?
Where did you go to school to become a solicitor in the UK?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
Re: Re:
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.
[ link to this | view in chronology ]
Re: Re:
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!!! ;)
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
Re: Re:
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.
[ link to this | view in chronology ]
Re: Re: Re:
Free shipping for the picture.
Extra shipping fee for the dirt bike or arrange your own shipping.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
xmas
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.
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
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
Maybe, just maybe you failed to see that there are other options and lights his words could be seen?
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.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
Unsolicited goods
[ link to this | view in chronology ]
So the consensus is
[ link to this | view in chronology ]
Re: So the consensus is
[ link to this | view in chronology ]
Just to let you know
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.
[ link to this | view in chronology ]
Re: Just to let you know
But sincerest thanks on doing that.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
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!
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
Re: (deep64blue)
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.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Response to: Anonymous Coward on Dec 13th, 2013 @ 6:05am
[ link to this | view in chronology ]