This post is going to be very long but I will try to clarify the mess and confusion in this thread.
Let’s start with proper legal definitions. We cannot just dogmatically assume that this is definitely a case of unsolicited goods because the DTI website says so. The case must fit the legal definition of unsolicited goods. Using the DTI website for a legal definition is simply wrong, we must use the statutes.
The original definition of unsolicited goods, found in the Unsolicited Goods and Services Act 1971, was amended by the Consumer Protection (Distant Selling) Regulations 2000. This might seem confusing but I will go through both the definitions with you and explain what they actually mean.
The old definition
Unsolicited Goods and Services Act 1971: said:
s.2(1): A person who, not having reasonable cause to believe there is a right to payment, in the course of any trade or business makes a demand for payment…for what he knows are unsolicited goods sent to another person with a view to him acquiring them shall be guilty of an offence.
s.2(2): A person who, not having reasonable cause to believe there is a right payment, in the course of any trade or business and with a view to obtaining any payment for what he knows are unsolicited goods sent as aforesaid –
(a) threatens to bring legal proceedings,
shall be guilty of an offence.
Allow me to paraphrase the above:
-If in the course of your trade or business
-you knowingly send unsolicited goods to a person with the intention of that person acquiring them
-and you either (a) demand payment without a reasonable cause, or (b) threaten legal proceedings
-then, you are guilty of an offence.
Remember, the above is the old definition.
The new definition
The new definition has been shuffled about and split up, but most of it remains the same.
Consumer Protection (Distant Selling) Regulations 2000: said:
s.24(1): Sections 24(2) and (3) below apply if –
(a) unsolicited goods are sent to a person (‘the recipient’) with a view to his acquiring them;
(b) the recipient has no reasonable cause to believe that they are sent with a view to their being acquired for the purposes of a business; and
(c) the recipient has neither agreed to acquire nor agreed to return them.
s.24(2): The recipient may…use, deal with or dispose of the goods as if they were an unconditional gift to him.
s.24(3) The rights of sender to the goods are extinguished.
s.24(4) A person who, not having reasonable cause to believe there is a right to payment, in the course of any business makes a demand for payment…for what he knows are –
(a) unsolicited goods sent to another person with a view to his acquiring them,
is guilty of an offence.
s.24(5) A person who, not having reasonable cause to believe there is a right to payment, in the course of any business makes a demand for payment for what he knows are unsolicited goods –
(a) threatens to bring any legal proceedings,
is guilty of an offence.
The new definition can be paraphrased as follows:
-If you send unsolicited goods to a person with the intention of that person acquiring them
-and the recipient did not request them
-then, the recipient may treat the goods as an unconditional gift
-and the seller relinquishes all rights to the goods.
-If you then proceed to either (a) demand payment without a reasonable cause, or (b) threaten legal proceedings
-in the course of your business,
-then, you are guilty of an offence.
The new definition is what we must use. So let’s apply it to your case.
Did you send unsolicited goods with the intention that the recipient should acquire them? No, you did not even intend to send the goods to the recipient, they were sent to the recipient by mistake/through error. Therefore, the recipient had no right to treat the goods as an unconditional gift. They are not unsolicited goods because there was no intention element on your part (this is an essential part of the definition of unsolicited goods, I’ll explain why later).
Did you demand payment without reasonable cause in the course of your business? Again, no. You did not demand payment in the course of a business. You are a private seller. Besides, you have reasonable cause to demand payment because the goods were sent by mistake. You are not guilty of an offence.
The same applies for threatening legal action. You did no threaten legal action in the course of a business. You are not guilty of an offence.
The answer
This is not the type of case that the legislature intended to catch by introducing the unsolicited goods legislation. It was designed to prevent traders and businesses from “imposing” contracts of sale upon unwilling consumers by sending them goods and then demanding payment. Let’s just stop and think about it for a minute…why would the legislation have an “intention” requirement? The answer: to ensure that mistaken deliveries are not subject to this harsh legislation. The statute clearly distinguishes between situations where there is an intention to send unsolicited goods and situations where there is no intention to send unsolicited goods. This case falls under the latter. The law implicitly recognises the possibility of mistaken delivery.
Don't forget that if this case does indeed go to court, the judge will often look at the purpose of the legislation. Again, this is not the type of situation that the legislature intended to regulate. Arguably, the legislation does not even apply to this case because the definition has not been satisfied.
So if they are not unsolicited goods, what exactly are they? As I said, this is simply a case of mistaken delivery. The goods were delivered as a result of a bona fide mistake without any intention of them being acquired by the recipient. The burden of proof is on you (i.e. you will have to prove the mistake) but this should not be too difficult. You have Ebay logs, email conversations, written letters and Royal Mail tracking numbers. You can even call upon the original buyer as evidence that they were bought by one person yet mistakenly sent to another.
So was the recipient allowed to sell the goods? No. Before the recipient can acquire the right to sell goods that belong to another person or treat them as his own, he must serve two formal notices upon you and give you reasonable time to collect the goods. This was not done. Also, the recipient must take reasonable steps to trace the owner of the goods before he can acquire the right to sell. Again, this was not done. Therefore, he had no right to sell and it seems quite likely that you can recover damages to the value of your goods.
