united-states business shipping
If a retailer sends you something you didn&#39;t order, can you keep it?
<p>This <a href="https://consumerist.com/2016/11/28/reminder-if-a-retailer-sends-you-something-you-didnt-order-you-can-keep-it/" rel="noreferrer">Consumerist</a> article discussing a Wal-Mart shipping mishap involving a <a href="https://consumerist.com/2014/07/29/walmart-sends-me-4-extra-ipods-doesnt-want-them-back/" rel="noreferrer">customer receiving extra iPods</a> argues that the FTC ruling regarding unsolicited goods means that you can keep good as a result of a shipping error. That is, if you <em>did</em> solicit goods, but the wrong ones were sent. </p>

<p>When I've tried getting more information on the legal context regarding this law <strong>in the USA</strong>, I seem to mostly find opinions and not any real citations or analysis of legal precedence and regulation. Like the Consumerist article, they don't seem to be clear depictions of the legal environment.</p>

<p>It seems that many retailers operate under the assumption that if they make a mistake and ship the wrong thing, but the <a href="https://www.ftc.gov/tips-advice/business-center/guidance/business-guide-ftcs-mail-internet-or-telephone-order" rel="noreferrer">original Rule's wording</a> doesn't seem to account for <em>errors</em>:</p>

<blockquote>
  <p><strong>Unordered Merchandise</strong><br>
  Whether or not the Rule is involved, in any approval or other sale you must obtain the customer’s prior express agreement to receive the merchandise. Otherwise the merchandise may be treated as unordered merchandise. It is unlawful to:</p>
  
  <ol>
  <li>Send any merchandise by any means without the express request of the recipient (unless the merchandise is clearly identified as a gift, free sample, or the like); or,</li>
  <li>Try to obtain payment for or the return of the unordered merchandise.</li>
  </ol>
  
  <p>Merchants who ship unordered merchandise with knowledge that it is unlawful to do so can be subject to civil penalties of up to $16,000 per violation. Moreover, customers who receive unordered merchandise are legally entitled to treat the merchandise as a gift. Using the U.S. mails to ship unordered merchandise also violates the Postal laws.</p>
</blockquote>

<p>Are there other regulations that apply, or is this the end-all be all? Can terms-of-service agreements with online retailers stipulate that you agree to return incorrect shipments?</p>

<p><a href="https://www.law.cornell.edu/uscode/text/39/3009" rel="nofollow noreferrer">39 USC 3009(b)</a> says that</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>and (a) prohibits "the mailing of un­ordered merchandise". (d) then says</p>

<blockquote>
  <p>For the purposes of this section, “un­ordered merchandise” means
  merchandise mailed without the prior expressed request or consent of
  the recipient.</p>
</blockquote>

<p>If you previously expressly request a jar of herring and they deliver a jar of herring, you have to pay for it. If instead they send you a jar of honey, then since you did not expressly order a jar of honey, they have violated the law. It doesn't matter whether they deep-down intended to send a jar of herring and accidentally sent honey, or they deep-down deceptively, deliberately and maliciously sent you honey – you still didn't order honey. So it isn't necessary for the law to say anything about error, since the effect of the law is clear enough without saying "whether deliberately or by error".</p>

<p>TOS wording cannot override federal law.</p>
