Legal Question in Credit and Debt Law in California

Re: Unsolicited Merchandise

The advice the other lawyer gave you is incorrect. Under the conditions you describe in your note, you are under no obligation at all to pay for or return the book. This is basic contract law. to make a valid contract both sides have to agree before any side is obligated to do anything.

Re: Unsolicited Merchandise

In reply to your inquiry, let me offer the following:

After looking at the responses from Messrs. Koury and Lundgren, I find myself taking something of a middle ground approach. Since you never asked for the book or promised to pay for it, you are certainly not obligated to buy it. I grant you that the seller's marketing tactics are, at best, distasteful. But, whether their conduct is so egregious, or their marketing plan so stupid that you'd be justified by keeping the book is a different story. If we look at it from a contract standpoint, and, for the moment, ignore the seller's tacky marketing scheme, I see the "transaction" as follows:

1. The seller made an offer to you, the prospective customer, to sell you the book they sent. Their pre-agreement tender of the book, to you, was part of that offer, and constituted the contract consideration you'd receive for agreeing to send them the purchase price.

2. You do not want to accept their offer, i.e., you don't want to pay the purchase price to keep the book. But, since you don't want to give them the contract consideration that they want, i.e., that purchase price, you aren't justified in keeping the consideration they tendered to you concurrent with their offer � i.e., the damn book. If you keep the book after rejecting their offer of sale, then you'd be unjustly enriched.

I'd recommend that you contact them and tell them they've got to pay for the shipping, but, in any event, I think you need to return the book.

Feel free to let me know if you have questions or

comments. Now, let me give the "de rigeur" caveat:

The foregoing information is provided as an

accommodation only, and does not constitute legal

advice or a legal opinion based on a comprehensive

review of all relevant facts and documents, nor can

provision of such information be construed as

creating an attorney-client relationship.

Re: Unsolicited Merchandise

I take it you missed the lesson where your mother attempted to teach you that two wrongs don't make a right. Assuming that you are correct and that the company sent you the book either on purpose or by error, you are not entitled to keep the book. It is no different than if your bank makes a mistake on your account and credits you an extra hundred dollars (or whatever). You are not entitled to the money, and you must return it. If you fail to return it you may be guilty of fraud. In this case, the company should pay for the return. If they refuse to pay for the return, get careful documentation of their refusal, and make absolutely certain you have not obligated yourself in any way, including inadvertently. Then tell them you are keeping the book --- or even better than you are going to donate the book to a charity.

If they ding your credit you have documentation to force them to correct the credit problem. But that may be a lot of work for a book which you can easily return.

I would also report the company to the Better Business Bureau and file complaints with the Cal. Attorney General's Office, Consumer Affairs and the Federal Trade Commission - these agencies regulate unfair business practices, which it appears the company may be using.