Wrong gpu sent!

[Gregster]

If it was me I would tell them I have clocked the **** out of it and it has given off a little smoke once or twice whilst doing this.

Tell them to come pick it up and refuse to pay any extra.....They might just say keep it.

 

[ALXAndy]

Well they do say possesion is 9/10 of the law!

Indeed.

As I say it falls to morals. From what I can gather they are now making all sorts of demands. As such I wouldn't play nice.

They should realise that this is their mistake.

Not only that, but they charged £40 to make that mistake.

If they charge his card then they are seriously breaking the law. I would show them the unsolicited goods act Tommy and tell them to get stuffed.

 

[HeX]

It's not unsolicited goods at all.

If out of the blue said etailer randomly sent this person a 7870, then that would be unsolicited goods. They have no rights to ask for it back as the person never asked them to send him the card.

In this case the person actually ordered something from the etailer, entered into a contract with them, they invoiced him and sent him the card. Which due to a mistake was the wrong one. That isn't unsolicited, he did order something from them.

It is an offence to demand payment for goods known to be unsolicited, in other words, they were sent to a person without any prior request made by them or on their behalf.

This person did have a prior request, it just happens a mistake was made in the order.



The Unsolicited Goods and Services Act is to stop companies sending people 'gifts' or undertaking services without their knowledge and then demanding payment for them later on. E.g. Windowcleaner turns up at your house, cleans all your windows, then demands payment for services rendered when you never asked for them.

 

[ALXAndy]

Isn't this where it falls down though?



He had a contract with them it's not like the item was sent out of the blue.

I'd just pay the difference, the minute you remove the card it's £40 wasted... see if the retailer will give him some time to pay the difference or accept £5 a week or something?

No it doesn't fall down. Tommy's friend/cousin agreed to pay for a 7850 and pay £40 to have it fitted.

They fitted a 7870. He did not ask for that, nor wanted to pay for that. So that falls foul of any contract both written and verbal unless he physically signed a contract that has a clause in it that states they can make mistakes and then rectify them and you waive your rights.

So basically what it means is this. If Tommy's friend/cousin wanted to be a real sod about it he could simply say that he wants his money back in full. Not only that, but he is under no obligation whatsoever to return the card they fitted.

As I said, it's a mistake they made. At no point in time should Tommy's pal be made to help rectify that mistake or appease the person that made it.

 

[ALXAndy]

It's not unsolicited goods at all.

If out of the blue said etailer randomly sent this person a 7870, then that would be unsolicited goods. They have no rights to ask for it back as the person never asked them to send him the card.

In this case the person actually ordered something from the etailer, entered into a contract with them, they invoiced him and sent him the card. Which due to a mistake was the wrong one. That isn't unsolicited, he did order something from them.



This person did have a prior request, it just happens a mistake was made in the order.



The Unsolicited Goods and Services Act is to stop companies sending people 'gifts' or undertaking services without their knowledge and then demanding payment for them later on. E.g. Windowcleaner turns up at your house, cleans all your windows, then demands payment for services rendered when you never asked for them.

If they sent him an item he did not ask for it is unsolicited.

Even if it has something in common with the one he did order. He will have a sales or order invoice, and on that invoice it will state the product he ordered.

Quite simply he didn't order it, and he didn't ask for it. Thus, it's unsolicited goods.

Ed. It's exactly the same as my cases. I *DID* order a silver predator rev 2.0. I had an Ebay invoice on screen AND a receipt with the first case.

I did not order more than one. So anything else they sent me whatsoever was unsolicited. I had no contract holding me to it, not even verbal. In my case (pardon the pun) they sent me three of the same items. But, I only wanted and asked for one.

The "recipient may [...] use, deal with, or dispose of the goods as if they were an unconditional gift to him"[2] and "[t]he rights of the sender to the goods are extinguished".[3]

 

[Rroff]

Isn't this where it falls down though?



He had a contract with them it's not like the item was sent out of the blue.

I'd just pay the difference, the minute you remove the card it's £40 wasted... see if the retailer will give him some time to pay the difference or accept £5 a week or something?

Yeah its not a clear cut case of unsolicited goods as a contract does exist although depending on circumstances it sometimes can fall under that but its complicated.

Its more complicated in that the contract that exists would have a clause in it that means the seller can't leave the 3rd party disadvantaged in the event that they can't fulfill the terms of the contract but this may or may not apply in the context of the seller sending more expensive goods depending on several factors - if it did they'd be responsible for the fitting fee but you'd need a solicitor to know if it was something that applied here.

Normally the shop should send a courier to pickup the item at the customer's convenience and ship out the correct replacement on reciept of the returned item - they can give the customer a choice of paying the difference but can't take that money automatically or use threats.

 

[francky]

Just negotiate with them....you can play all the UK law cards you like, but I wouldnt advise it without good knowledge of consumer law.

I would go down the route of stating the item is now used and that you feel sending it back wouldnt be in their interest based on its used value and thus re-sale value.

With collection cost as well, they would be looking at a loss over just letting you keep it.

 

[Rroff]

If they sent him an item he did not ask for it is unsolicited.

Even if it has something in common with the one he did order. He will have a sales or order invoice, and on that invoice it will state the product he ordered.

Quite simply he didn't order it, and he didn't ask for it. Thus, it's unsolicited goods.

Ed. It's exactly the same as my cases. I *DID* order a silver predator rev 2.0. I had an Ebay invoice on screen AND a receipt with the first case.

I did not order more than one. So anything else they sent me whatsoever was unsolicited. I had no contract holding me to it, not even verbal. In my case (pardon the pun) they sent me three of the same items. But, I only wanted and asked for one.

The "recipient may [...] use, deal with, or dispose of the goods as if they were an unconditional gift to him"[2] and "[t]he rights of the sender to the goods are extinguished".[3]

It _can_ apply as the item recieved is ancillary to what the buyer would have expected under the contract - however the terms of the contract that most shops use would have a clause to cover sending a more expensive item so it gets complicated (you could argue that the contract doesn't apply at all but you'd need a solicitors advice) - but as always regardless of what the shop put in the contract it doesn't over-ride the customers statutory rights.

 

[ALXAndy]

I don't quite understand why contracts are being brought into this.

The only contract and or obligation both parties had was to abide to the terms of a sale.

Tommy's cousin orders a 7850 and agrees, in the contract he made, to pay £40 to have it fitted.

The company turn up and breach that contract by fitting a card he did not want nor ask for.

They are now trying to make him either pay the extra or give the card back.

THEY are the only ones breaching the contract. It really is as simple as that.

If I ordered a red pair of trainers for £120 and a black pair came, even if they are exactly the same trainers, then I did not solicit those goods. I did not pay for those goods, I paid for a red pair.

At no point is the consumer at fault. Their contract is to quite simply pay for the goods they ordered. They are under no obligation at all to rectify any mistakes they have not made.

Edit. Rroff I think the best thing for them to do is just man up and accept they made a mistake and be happy that at least they walk away with something.

Because to the letter of the law that card was not ordered nor asked for. Just the very fact they are asking for any money puts them woefully in the wrong.

 

[Rroff]

I don't quite understand why contracts are being brought into this.

The only contract and or obligation both parties had was to abide to the terms of a sale.

Tommy's cousin orders a 7850 and agrees, in the contract he made, to pay £40 to have it fitted.

The company turn up and breach that contract by fitting a card he did not want nor ask for.

They are now trying to make him either pay the extra or give the card back.

THEY are the only ones breaching the contract. It really is as simple as that.

If I ordered a red pair of trainers for £120 and a black pair came, even if they are exactly the same trainers, then I did not solicit those goods. I did not pay for those goods, I paid for a red pair.

At no point is the consumer at fault. Their contract is to quite simply pay for the goods they ordered. They are under no obligation at all to rectify any mistakes they have not made.

Edit. Rroff I think the best thing for them to do is just man up and accept they made a mistake and be happy that at least they walk away with something.

Because to the letter of the law that card was not ordered nor asked for. Just the very fact they are asking for any money puts them woefully in the wrong.

He could argue hes still waiting for the 7850 and that the 7870 doesn't exist as part of the contract with them... strangely enough its not a situation I have any experience of as where I work we would just take it on the chin as our mistake and its rarely worth the possible souring of relationships with the customer over - especially repeat customers.

 

[ALXAndy]

Hmm actually I'm a bit confused.

Tommy. This local place who fitted the card. Are they the ones who sold it to him?

Or did he get it elsewhere?

If he did then DSR comes into play. I would hold firm.

 

[PiKe]

Hmm actually I'm a bit confused.

Tommy. This local place who fitted the card. Are they the ones who sold it to him?

Or did he get it elsewhere?

If he did then DSR comes into play. I would hold firm.

From the OP, it's obviously a card from an online retailer, hence (etailer).

 

[mmj_uk]

If I ordered a red pair of trainers for £120 and a black pair came, even if they are exactly the same trainers, then I did not solicit those goods. I did not pay for those goods, I paid for a red pair.

but they were delivered for legitimate business between yourself and the retailer (albeit wrongly). I'm with HeX here, unsolicited goods for me is when something appears out of the blue that you have no prior knowledge of, there is a clear contract in play here.

Also he payed a separate PC shop to fit the card, the retailer will argue that he should have noticed that it was wrong and notified them beforehand.

 

[ALXAndy]

He could argue hes still waiting for the 7850 and that the 7870 doesn't exist as part of the contract with them... strangely enough its not a situation I have any experience of as where I work we would just take it on the chin as our mistake and its rarely worth the possible souring of relationships with the customer over - especially repeat customers.

Yeah for sure. I mean it does come down to goodwill in the end.

I think I had it a bit mixed up though. I think he ordered it from an Etailer, then called in a local company to fit it for him.

In which case the local company want £20 to swap it out.

I think in all honesty this does fall under unsolicited goods. Unless of course as I said there is a clause somewhere in this Etailer's rules and regs.

However, as we know, as much as an Etailer will make up their own rules they can't make them stick. Many PC part Etailers charge return shipping for broken or faulty items when by law they should not be.

That's why I will only buy from a company who does not punish me and make me pay for them sending me something that doesn't work.

 

[ALXAndy]

but they were delivered for legitimate business between yourself and the retailer (albeit wrongly). I'm with HeX here, unsolicited goods for me is when something appears out of the blue that you have no prior knowledge of, there is a clear contract in play here.

Also he payed a separate PC shop to fit the card, the retailer will argue that he should have noticed that it was wrong and notified them beforehand.

If any one should have noticed it it should have been the Etailer. They should look more carefully before busting out the tape gun.

This is their fault. They are not allowed or obliged under any law to charge his card any extra. If they do they are breaking the law.

Ed. Going back to unsolicited goods? they still are. It is not what he ordered.

If I ordered a jumper and got sent a pair of socks it's not what my order contract obliges me to pay for. Same goes with if I ordered a Radeon and they sent me a Geforce.

Just because it's a Radeon and similar to what he did order it doesn't matter. It's not what he ordered, so it's not what he entered a contract to pay for.

 

[buchtis]

£40 for around 5-10 minutes work. Wow, just wow.

 

[HeX]

If I ordered a red pair of trainers for £120 and a black pair came, even if they are exactly the same trainers, then I did not solicit those goods. I did not pay for those goods, I paid for a red pair.

At no point is the consumer at fault. Their contract is to quite simply pay for the goods they ordered. They are under no obligation at all to rectify any mistakes they have not made.

So you are saying if this happened you'd just keep the red pair and expect the business to suck up the cost because of a packing error, even though they've offered to refund/replace/discount what you've been sent?

I can't see you being able to get away with that one, I ordered black so I'll keep these for free thanks.

the individual has no reasonable cause to believe that they were delivered for legitimate business and had not previously agreed to acquire them

Quite obviously the person has reason to believe they were delivered for legitimate business as he had ordered a gpu from the store that dispatched the card.

Everything points to the store responding too and providing a service based on a request issued by the customer.

That isn't unsolicited, it's just a shipping mistake. And yes its the stores fault and as such they should arrange for someone to remove and collect the card if they want it back.

For it to be unsolicited they'd just have to send this person a card out of the blue, and then demand payment for it. Which isn't what happened, he DID order a GPU just the wrong one came.

 

[Rroff]

I'm gonna have to ask our legal guys about this one. Regardless I'd heavily play on the fact that the customer is now at a disadvantage due to their mistake and definitely not admit to knowing it was the wrong part before they pointed it out.

Regardless they shouldn't be charging a penny (unless the customer agrees to pay the difference) and should be paying for it to be returned at their expense and the customers convenience.

 

[mmj_uk]

If he did then DSR comes into play. I would hold firm.

If he sends it back he'll be back to square one and £40 worse off... what's the point in doing that?

The sensible thing to do is try to negotiate a payment plan to pay them the difference, what is it with people these days trying to get something for nothing at every opportunity?

 

[ALXAndy]

So you are saying if this happened you'd just keep the red pair and expect the business to suck up the cost because of a packing error, even though they've offered to refund/replace/discount what you've been sent?

I can't see you being able to get away with that one, I ordered black so I'll keep these for free thanks.

Nope. I would say "OK then. Send a courier around when it is convenient for me and come and collect them".

I would offer them the chance to rectify their mistake, but, I would also be sure not to suffer any expenditure.

See also - I won't order from a pile of Etailers because if I get a faulty item they expect me to pay to send it back. So let's say I entered a contract with a company, received damaged or broken items and wanted a refund I would not be prepared to pay £8 for a courier and end up £8 out of pocket because they sent me a damaged or faulty item.

I think a lot of Etailers need to realise this, and stop passing their customer service costs onto the customer. And pack up using 0871 numbers also. Why should I have to pay to fix a mistake they made?

Tommy's cousin has paid £40 to have this card fitted. TBH if it wasn't for their attitude IE = "we've made a mistake but that's OK because you are going to pay for it" I would not stand my ground. I would allow them the chance to come and collect it and replace it with the part they should have sent me in the first place.

However, not only have they sent him the wrong part but they now want it back, and that will cost Tommy's cousin an extra £20. Hence why I would tell them to get bent. Not because I'm nasty, but because their mistake leads to my misfortune.

And that should never happen in a sale.

Quite obviously the person has reason to believe they were delivered for legitimate business as he had ordered a gpu from the store that dispatched the card.

Everything points to the store responding too and providing a service based on a request issued by the customer.

That isn't unsolicited, it's just a shipping mistake. And yes its the stores fault and as such they should arrange for someone to remove and collect the card if they want it back.

For it to be unsolicited they'd just have to send this person a card out of the blue, and then demand payment for it. Which isn't what happened, he DID order a GPU just the wrong one came.

Yeah, the wrong one came and now they want paying for it.

They've got more chance of being handcuffed to a ghost.