Additional item included in an order - do I have to pay for it?

RefluentBeans

BooJewels said:

screech_78 said:

It’s not unsolicited. That would only be the case if you didn’t have any relationship with the retailer at all and had been sent something out of the blue. 

They are correct that if you want to keep it, you should pay for it. They should make arrangements for the return, you shouldn’t have to go out of your way to get it back to them. Of course, some retailers may allow you to keep the item free of charge but there’s no obligation for them to do so. 

The bit in bold is where I think I'd formed the wrong impression - I hadn't made that distinction.  I think on principle, I'll send it back - I hadn't planned that expenditure this month, so don't see why I should be forced into it due to an error by someone else.  

You’re not being forced into payment by someone else. From your posts it seemed you initially thought you were entitled to it. I’m guessing to them, your first email may have seemed ‘sniffy’ to them. Mistakes do happen, and depending on the size of the company, the value of the product etc they may want to recover the money. There’s a legal distinction between unsolicited and what we colloquially think of unsolicited. Unsolicited goods are rarely sent nowadays - that would be coming home to a parcel from a company you have never contacted, and then being forced to pay it. 

As others have said, they can arrange a collection from you if they want the product back. I also don’t think that is generally too much to ask. Given the cost of the parcel, I would think that they wouldn’t care, but it does depend. Legally they can request for the item to be made available. 

BooJewels

RefluentBeans said:

BooJewels said:

screech_78 said:

It’s not unsolicited. That would only be the case if you didn’t have any relationship with the retailer at all and had been sent something out of the blue. 

They are correct that if you want to keep it, you should pay for it. They should make arrangements for the return, you shouldn’t have to go out of your way to get it back to them. Of course, some retailers may allow you to keep the item free of charge but there’s no obligation for them to do so. 

The bit in bold is where I think I'd formed the wrong impression - I hadn't made that distinction.  I think on principle, I'll send it back - I hadn't planned that expenditure this month, so don't see why I should be forced into it due to an error by someone else.  

You’re not being forced into payment by someone else. From your posts it seemed you initially thought you were entitled to it. I’m guessing to them, your first email may have seemed ‘sniffy’ to them. Mistakes do happen, and depending on the size of the company, the value of the product etc they may want to recover the money. There’s a legal distinction between unsolicited and what we colloquially think of unsolicited. Unsolicited goods are rarely sent nowadays - that would be coming home to a parcel from a company you have never contacted, and then being forced to pay it. 

As others have said, they can arrange a collection from you if they want the product back. I also don’t think that is generally too much to ask. Given the cost of the parcel, I would think that they wouldn’t care, but it does depend. Legally they can request for the item to be made available. 

Well, both of the solutions they've offered me are forcing me into expenditure.  At present, their latest email only gives me 2 options; pay for it with 10% discount or return it within a week - they haven't offered a collection option or a returns label. 

The only bit of their T&C vaguely related to this is in respect of 'unwanted items' - which they describe as "if you decide you no longer want the items you’ve purchased".  In that case, they ask you to advise them and await return instructions and once returned, they'll be inspected and if in a saleable condition, they'll refund the item - but "you’ll be responsible for the return carriage charges".  So according to their terms, which don't really fit my situation, I will be forced into some expenditure - return postage or keep the item at 90% of retail price.  I haven't even had any instructions - just 'if you decide to return the item, we ask that you do that within a week'.

I did already acknowledge in the post you've quoted that I'd got confused in my understanding of 'unsolicited' - so checked and hence asking for clarification, as the legislation itself didn't seem to cover my scenario.

No, arranging collection from me isn't 'too much to ask' at all but that's not an option they've offered as yet.  I've just drafted an email saying that neither of their current options are acceptable and I'll pack it back into the packing it came in and they're welcome to arrange collection.  I've already printed the invoice and written a note on it to be included and started packing it.

ETA:  I also don't want the responsibility for the item if I arrange the return.  It isn't mine and yet I will be responsible if something happens to it in transit - so them arranging collection is a more satisfactory solution all round.

ArbitraryRandom

There's really two ways to look at the item - an 'extra' unwanted item that you are currently holding, or an 'incorrect' item (given it was included in the place of an ordered, if free, item).

I'd lean towards the second, because it then means the item is clearly 'not as described' (different from change of mind) and therefore you have the legal right to reject under the consumer rights act  https://www.legislation.gov.uk/ukpga/2015/15/part/1/chapter/2/crossheading/what-remedies-are-there-if-statutory-rights-under-a-goods-contract-are-not-met/enacted



I'm drawing your attention to the second point there because if the reason you can't get to the post office is not having a car and the size meaning it would be difficult on public transport, then a reasonable cost might include a taxi both ways... so you could offer that as an alternative if they refuse to send someone to collect  

BooJewels

Thanks for your additional information @ArbitraryRandom - it's much appreciated.  I hadn't even considered (in the legal sense) the idea that it's an 'incorrect' item - sent in place of the freebie.  

You're close with your suggestion of why I can't easily post the item - initially thinking that they'd send me a label to then post it myself - I don't have a car and there is no public transport in that direction and it's too deep for the local post box - so I'd either have to walk or get a taxi - if they sent a label. 

If I were posting it for myself, I'd just order the postage on-line and get RM to collect it from me - but then I'd have the expense of arranging that and also the responsibility for it in transit, or if lost. 

So by far the most suitable solution is if I pack it up and they arrange to collect it.  I might well have just paid for it if they'd been a bit more generous with their discount - I thought that should at least be equal to the cost to them of retrieving it - which 10% won't cover - 15% or 20% would have made it worth it for both parties.

the_lunatic_is_in_my_head

ArbitraryRandom said:

I'd lean towards the second, because it then means the item is clearly 'not as described' 

With item not as described, if the trader refused to repair/replace then a consumer would be entitled to choose between rejecting for a refund or a price reduction.

I'm not sure how a price reduction would work with an item worth more than what was paid. I would assume in most instances the company would either resolve the matter, as it's in their financial interest, or write it off. 

It would perhaps be a better position for a company to take that in the event of an erroneous item the customer is an involuntary bailee. 

Zavvi had a similar issue back in 2013 by sending PlayStation Vitas instead of a game to customers, Zavvi took the position the customers had to give the goods back, although what their reasoning was I don't know and that was before the CRA.

ArbitraryRandom said:

 then a reasonable cost might include a taxi both ways

If OP was to go down the not as described route I'm not sure you could justify a taxi unless in extreme circumstances, there is always an obligation to mitigate losses and a reasonable question might be why couldn't someone get a lift off a friend, neighbour, family rather than paying for a taxi.

OP didn't state where they purchased from so we don't know if they agreed, I've always assumed that's by way of T&Cs, to return, if they haven't then I guess either way the company would have to collect. 

BooJewels

I'm not going to name the company for a variety of reasons.  Their T&Cs, in respect of returns, don't really cover this scenario - just faulty, damaged and unwanted items - in the latter case, they state, as previously quoted, that I should arrange and pay for return carriage. If the item was unwanted, that would be fine, as I would have become the owner upon delivery, but this isn't the case here.  So I'd be arranging and forming a contract for delivery of an item I didn't own, with the potential implications of that.

Whilst I've been typing, an email has arrived, someone else has taken over and they now seem to get it - they're arranging collection and ask when would be best.  I think that's the best solution. 

ArbitraryRandom

the_lunatic_is_in_my_head said:

ArbitraryRandom said:

I'd lean towards the second, because it then means the item is clearly 'not as described' 

With item not as described, if the trader refused to repair/replace then a consumer would be entitled to choose between rejecting for a refund or a price reduction.

ArbitraryRandom said:

 then a reasonable cost might include a taxi both ways

If OP was to go down the not as described route I'm not sure you could justify a taxi unless in extreme circumstances, there is always an obligation to mitigate losses and a reasonable question might be why couldn't someone get a lift off a friend, neighbour, family rather than paying for a taxi.

OP didn't state where they purchased from so we don't know if they agreed, I've always assumed that's by way of T&Cs, to return, if they haven't then I guess either way the company would have to collect. 

The customer has the right to reject items not as described on delivery (aka short term right to reject) - there's no option for the supplier to decide if it's a replacement or repair during this period because the act of rejecting ends the contract (the supplier has that right if the issue is first brought to their attention after the inspection period - normally 30 days, unless perishable good). 

The OP quoted the T&Cs which, assuming that's all of the relevant terms, only relates to a customer change of mind - so in the absence of any other agreed term the rights are as set out in the act.

And yes, the use of a taxi might or might not be reasonable - and expecting the OP to find someone to give them a lift might or might not be reasonable.

I'm not suggesting the OP takes a taxi THEN demands payment - but that if the supplier is unable (reasonably, in their judgement) to arrange a collection and the OP is unable (reasonably, in their judgement) to get to the post office using public transport/via a friend then they can suggest alternatives, such as a taxi.

If the various options are not considered reasonable by the supplier then it's for the supplier to come up with a solution... which could include letting the OP just keep the item. 

ArbitraryRandom

BooJewels said:

I'm not going to name the company for a variety of reasons.  Their T&Cs, in respect of returns, don't really cover this scenario - just faulty, damaged and unwanted items - in the latter case, they state, as previously quoted, that I should arrange and pay for return carriage. If the item was unwanted, that would be fine, as I would have become the owner upon delivery, but this isn't the case here.  So I'd be arranging and forming a contract for delivery of an item I didn't own, with the potential implications of that.

Whilst I've been typing, an email has arrived, someone else has taken over and they now seem to get it - they're arranging collection and ask when would be best.  I think that's the best solution. 

Cross posted - great news. Hope it all goes smoothly. 

... have you by chance asked about your missing item?  

BooJewels

ArbitraryRandom said:

BooJewels said:

I'm not going to name the company for a variety of reasons.  Their T&Cs, in respect of returns, don't really cover this scenario - just faulty, damaged and unwanted items - in the latter case, they state, as previously quoted, that I should arrange and pay for return carriage. If the item was unwanted, that would be fine, as I would have become the owner upon delivery, but this isn't the case here.  So I'd be arranging and forming a contract for delivery of an item I didn't own, with the potential implications of that.

Whilst I've been typing, an email has arrived, someone else has taken over and they now seem to get it - they're arranging collection and ask when would be best.  I think that's the best solution. 

Cross posted - great news. Hope it all goes smoothly. 

... have you by chance asked about your missing item?  

Looks like all will be well - collection arranged and confirmed by RM.  

  Nope . . I didn't dare mention it.  I'll be happy to forego it to have the matter closed.

the_lunatic_is_in_my_head

ArbitraryRandom said:

 (aka short term right to reject) -

That's correct but the consumer has a choice whether to exercise that right.

If I order a tin of beans and get sent a PS5 why would I want to reject the PS5, or use any of the other rights afforded (repair/replace, final reject/price reduction), as I'd clearly want to keep the PS5 . 

That's why it sits better that this type of situation is an involuntary bailee, i,e the consumer doesn't have a choice and must take steps to assist in restoring the goods to their owner. 

BooJewels said:

Whilst I've been typing, an email has arrived, someone else has taken over and they now seem to get it - they're arranging collection and ask when would be best.  I think that's the best solution. 

Good to hear OP