You didn’t order it — can you keep it?

The holidays can sometimes bring unsolicited items in the mail.

For example, as a kid, I remember receiving a cheap radio that I did not order. One day, my father heard it playing some static-laced popular tunes.

“Where did you get that?” he inquired.

I told him the circumstances, and Pop was not happy.

“If you didn’t order it, you should send it back,” he concluded. “It’s not right to keep something that is not yours if you didn’t pay for it.”

He had an interesting moral argument, but was my father correct? Well, probably not from a legal standpoint.

Payment for unsolicited products in the mail was a kicked-around legal question for a number of decades. Eventually, the Federal Trade Commission came to the following conclusion:

“If you receive merchandise that you didn’t order, you have a legal right to keep it as a free gift.”

One might ask how could this government agency reach such a conclusion?

For many years, a number of companies used the practice of sending unrequested merchandise to unsuspecting patrons and then billing them. If customers refused to pay, these businesses would threaten court action. Sometimes, they were actually successful in collecting payment under what is known in legal circles as “quasi-contract” theory.

In other words, if someone benefited from the usage of a product, they were taking advantage of what is known as “unjust enrichment” (a position which my father probably would have agreed).

But many others saw this type of practice as a suckers’ game. As a result, a few states did something about it.

As early as 1851, Florida passed a statute that read, “No person shall be liable to pay for any newspaper, periodical or other like matter, unless he shall subscribe for or order the same in writing.”

Many years later, Virginia enacted a law that was the first to apply to all unordered goods. It prevented suit for payment of these products unless a contract existed, either expressed or implied, by both the merchant and the seller.

By 1967, California got into the act with Civil Code Section 1716, which stated in effect that payment for unordered goods is prohibited unless the recipient has agreed to accept an unsolicited offer.

These statutes, as well as the Federal Trade Commission’s position, are no guarantee that someone or some company will not try to use this old technique against unsuspecting consumers. Once in a while, they might be successful at collecting.

There are always exceptions to any rule. Say a contract exists between the merchant and seller but a mistake has been made, such as the wrong merchandise sent in error or sent to the wrong address. This can create a different set of obligations by the receiver in order to avoid “unjust enrichment.”

How about those address stickers, notepads and other items one might receive from a charity that are unsolicited? Must they be returned?

Not according to the FTC. These items are considered “gifts” and people may do with them as they please.

Of course, information presented here is for educational discussion and not meant as legal advice. For your specific situation, consult a qualified attorney.

So, was my father’s assessment correct regarding the circumstances surrounding my little radio? It certainly appears he was on shaky legal ground. But as for the moral aspect of the situation? Well, I’ll leave that up to you.