Unsolicited free gift discounted from refund

visidigi

the_lunatic_is_in_my_head said:

visidigi said:

setphaserstofun said:

screech_78 said:

Oh dear. This isn’t unsolicited. 

Can you help me understand why this isn't unsolicited?

I purchased a single item, and I received a single item. Two weeks later I received an additional item. I did not know I was receiving this, ask to receive it, and is nowhere on any invoice.

setphaserstofun said:

I had a DHL delivery on 7/11 of a Asus Gaming Charger Dock with a Asus UK invoice inside, showing the original XAX with its full cost and this item with a value of £0.00.

Unfortunately you've made it pretty clear that it is on the invoice that the dock came with.

This is correct but reads as if they've given that to OP after they placed the order and received the Xbox Ally X. 

Sending something unannounced after the fact and tying it to a previous order doesn't mean it formed part of the original contract. 

If it was a known offer that was advertised and OP would be reasonably expect to know that the offer existed that could tie it together. 

Genuinely don't know where OP stands and it would be interesting to know. 

Had the OP sent back the original item BEFORE the free gift turned up, I expect it would be a different standing - in the sense it could be argued that they made it imposisble to comply with the addended invoice as they no longer had the item.

But.

The OP had the original item when the additional item turned up. They then took over 4 calendar days to return the original item.

At that point, it was clear, from the invoice in the gift delivery, that the two were related (as the invoice listed both).

Therefore the item should have been returned. 

the_lunatic_is_in_my_head

visidigi said:

the_lunatic_is_in_my_head said:

visidigi said:

setphaserstofun said:

screech_78 said:

Oh dear. This isn’t unsolicited. 

Can you help me understand why this isn't unsolicited?

I purchased a single item, and I received a single item. Two weeks later I received an additional item. I did not know I was receiving this, ask to receive it, and is nowhere on any invoice.

setphaserstofun said:

I had a DHL delivery on 7/11 of a Asus Gaming Charger Dock with a Asus UK invoice inside, showing the original XAX with its full cost and this item with a value of £0.00.

Unfortunately you've made it pretty clear that it is on the invoice that the dock came with.

This is correct but reads as if they've given that to OP after they placed the order and received the Xbox Ally X. 

Sending something unannounced after the fact and tying it to a previous order doesn't mean it formed part of the original contract. 

If it was a known offer that was advertised and OP would be reasonably expect to know that the offer existed that could tie it together. 

Genuinely don't know where OP stands and it would be interesting to know. 

Had the OP sent back the original item BEFORE the free gift turned up, I expect it would be a different standing - in the sense it could be argued that they made it imposisble to comply with the addended invoice as they no longer had the item.

But.

The OP had the original item when the additional item turned up. They then took over 4 calendar days to return the original item.

At that point, it was clear, from the invoice in the gift delivery, that the two were related (as the invoice listed both).

Therefore the item should have been returned. 

I appreciate that but it's still after the fact. You can't amend the terms of contract without both parties agreeing so later saying " here's a free gift now tied to a previously formed contract" shouldn't be permissible. 

visidigi

the_lunatic_is_in_my_head said:

visidigi said:

the_lunatic_is_in_my_head said:

visidigi said:

setphaserstofun said:

screech_78 said:

Oh dear. This isn’t unsolicited. 

Can you help me understand why this isn't unsolicited?

I purchased a single item, and I received a single item. Two weeks later I received an additional item. I did not know I was receiving this, ask to receive it, and is nowhere on any invoice.

setphaserstofun said:

I had a DHL delivery on 7/11 of a Asus Gaming Charger Dock with a Asus UK invoice inside, showing the original XAX with its full cost and this item with a value of £0.00.

Unfortunately you've made it pretty clear that it is on the invoice that the dock came with.

This is correct but reads as if they've given that to OP after they placed the order and received the Xbox Ally X. 

Sending something unannounced after the fact and tying it to a previous order doesn't mean it formed part of the original contract. 

If it was a known offer that was advertised and OP would be reasonably expect to know that the offer existed that could tie it together. 

Genuinely don't know where OP stands and it would be interesting to know. 

Had the OP sent back the original item BEFORE the free gift turned up, I expect it would be a different standing - in the sense it could be argued that they made it imposisble to comply with the addended invoice as they no longer had the item.

But.

The OP had the original item when the additional item turned up. They then took over 4 calendar days to return the original item.

At that point, it was clear, from the invoice in the gift delivery, that the two were related (as the invoice listed both).

Therefore the item should have been returned. 

I appreciate that but it's still after the fact. You can't amend the terms of contract without both parties agreeing so later saying " here's a free gift now tied to a previously formed contract" shouldn't be permissible. 

Keep in mind these things were ordered in a rush as soon as pre-ordering opened - I would imagine not much was read or noticed during the process in order to secure a device. Unfortunately I can't find any cached copies of the page, so we only have the OP to go on that there was zero information displayed

Are we sure the T&C's weren't there from the beginning, seems that free gift were in the T&C's, only an updated invoice arrived with the 'free gift', but the original T&C's still apply... 

A_Geordie

visidigi said:

Keep in mind these things were ordered in a rush as soon as pre-ordering opened - I would imagine not much was read or noticed during the process in order to secure a device. Unfortunately I can't find any cached copies of the page, so we only have the OP to go on that there was zero information displayed

Are we sure the T&C's weren't there from the beginning, seems that free gift were in the T&C's, only an updated invoice arrived with the 'free gift', but the original T&C's still apply... 

The T&Cs can only apply if there was a reasonable expectation that the consumer expected to receive the promotional gift i.e. it was stated somewhere on the product page or the checkout page that the consumer was aware they would be receiving the promotional item when purchasing the intended goods. Basic contract law principles dictate that you can't be bound by the terms after the fact. 

Equally, there's a possibility that Asus have engaged in unfair commercial practices, contrary to s236 of the Digital Markets, Competition and Consumer Act 2024 (also a criminal offence to demand payment): 

Inertia selling

(1)This section applies where a trader engages in the unfair commercial practice described at paragraph 31 of Schedule 20.

(2)The consumer is exempted from any obligation to pay for (or provide any other consideration for) the products supplied by the trader.

(3)In the case of a supply of goods that has not been requested, the consumer may, as between the consumer and the trader, use, deal with or dispose of the goods as if they were an unconditional gift to the consumer.

(4)The absence of a response from a consumer following the supply of the product does not constitute consent from the consumer to comply with the trader’s demand for the consumer to—

(a)pay for the product;
(b)return the product;
(c)safely store the product.

If the OP was certain there was nothing to suggest a promotional gift would also be added, then they need to get back to the website and take screenshots as evidence before Asus update the page to cover themselves. 

the_lunatic_is_in_my_head

visidigi said:

Are we sure the T&C's weren't there from the beginning

Indeed not, I was careful to advise OP "If your account of events is correct"  

setphaserstofun

No issue with the caveat if my account is correct, I'm as certain as I can be.

Looking at the first HDUK link, one of the comments is showing an invoice with the charger dock listed. The invoice and order shipments I can currently still download from the Asus website does not have that line item; yes I had one received with the dock itself but as pointed out this was after the fact. 

I believe preorders had opened at 1/2am, and my order was not until 9.30am so I imagine at that point they had sold out of them. I would assume that Asus have subsequently sent them out to anyone with pre-orders and not checked who added it to basket and who didn't?

I would also have no issue if Asus had said when I spoke to them on the phone to raise the initial return (and subsequent email) that a dock will be shipped and it needs to be returned - but they didn't.

saajan_12

If we're actually looking for solutions, do you have an issue with returning the dock if it was at their cost? If so, ask for that. If not and you're expecting to keep the dock, then that's a separate issue. 

Grumpy_chap

I really think this would benefit from applying pragmatic "balance of probabilities" consideration and how this might plausibly be decided if the OP (or the retailer) were to take the £50 deficit to small-claims.

• An individual is very keen to have the latest X-Box and placed a pre-order at £800
• The X-Box was received 
• A couple of days later, the "free gift" charging dock associated with the X-Box was also received
• The individual decided to cancel the order and returned the X-Box but not the charging dock.
• The retailer refunded the cost of the X-Box with a deduction for the charging dock £50, hence refund £750.
• The retailer says they will not refund the £50 for the charging dock unless it is returned.
• "Free gift" is a common marketing tactic.  
• In such "free gift" scenarios, if the order is cancelled the whole order has to be returned, not keeping the "free gift".
• The individual is suggesting that the charging dock is unrelated to the item purchased, is not a "free gift" (which needs to be returned as part of the order cancellation) but that the charging dock is "unsolicited goods" (and can therefore be kept).

There may have been some unclear (or unread) information but I really don't see, how if this was pushed to small-claims, an independent person reviewing it would really conclude that the "free gift" was not a "free gift" but was in fact "unsolicited goods".

If the "free gift" was in fact "unsolicited goods", how coincidental is it that the item received happened to be an accessory for the item the individual had purchased from the same supplier?

visidigi

setphaserstofun said:

No issue with the caveat if my account is correct, I'm as certain as I can be.

Looking at the first HDUK link, one of the comments is showing an invoice with the charger dock listed. The invoice and order shipments I can currently still download from the Asus website does not have that line item; yes I had one received with the dock itself but as pointed out this was after the fact. 

I believe preorders had opened at 1/2am, and my order was not until 9.30am so I imagine at that point they had sold out of them. I would assume that Asus have subsequently sent them out to anyone with pre-orders and not checked who added it to basket and who didn't?

I would also have no issue if Asus had said when I spoke to them on the phone to raise the initial return (and subsequent email) that a dock will be shipped and it needs to be returned - but they didn't.

Can you answer these questions please?

Have you used the dock?
Did you ask ASUS if they would send you a prepaid label?

the_lunatic_is_in_my_head

Grumpy_chap said:

I really think this would benefit from applying pragmatic "balance of probabilities" consideration and how this might plausibly be decided if the OP (or the retailer) were to take the £50 deficit to small-claims.

• An individual is very keen to have the latest X-Box and placed a pre-order at £800
• The X-Box was received 
• A couple of days later, the "free gift" charging dock associated with the X-Box was also received
• The individual decided to cancel the order and returned the X-Box but not the charging dock.
• The retailer refunded the cost of the X-Box with a deduction for the charging dock £50, hence refund £750.
• The retailer says they will not refund the £50 for the charging dock unless it is returned.
• "Free gift" is a common marketing tactic.  
• In such "free gift" scenarios, if the order is cancelled the whole order has to be returned, not keeping the "free gift".
• The individual is suggesting that the charging dock is unrelated to the item purchased, is not a "free gift" (which needs to be returned as part of the order cancellation) but that the charging dock is "unsolicited goods" (and can therefore be kept).

There may have been some unclear (or unread) information but I really don't see, how if this was pushed to small-claims, an independent person reviewing it would really conclude that the "free gift" was not a "free gift" but was in fact "unsolicited goods".

If the "free gift" was in fact "unsolicited goods", how coincidental is it that the item received happened to be an accessory for the item the individual had purchased from the same supplier?

If this was a £40 million gift I'm sure there would be teams of lawyers lining up to argue the technicalities of law, as it's £40 no one care, expect OP of course. 

Asus appears to be a massive company so OP will probably get the script from customer service, I doubt they'll go to court for £40.

Bank would be interesting though, as it stands OP has cancelled the contract and hasn't had a full refund, if bank agrees gift had nothing to do with contract £40 is due. If they disagree they'll ideally have to say why, I say ideally as they are regulated and should treat the customer fairly which would including explaining why a decision was made. 

Bank may just right it off, who knows. 

If there genuinely wasn't any indication that the gift would come with the order I don't see why OP shouldn't be entitled to keep it.