Unsolicited Goods

"... 10 sets of business forms, free trial, return within 14 days or payment in full…"
 
On average every small business gets at least one approach per week involving unsolicited goods. Partner Tony Sutton gives advice on how to avoid being caught out.

Unsolicited Goods and Services Act 1971

A consumer has rights under the Unsolicited Goods and Services Act 1971 ("the 1971 Act").  This Act confers the recipient of the goods with the right to:

"Use, deal with or dispose of {the goods} as if they were an unconditional gift to him, and any right of the sender to the goods shall be extinguished."

Unfortunately, these rights do not apply to a business that receives unsolicited goods and it was reasonable for you to believe that the goods were sent for business or trade purposes. Therefore, businesses must rely on general contractual principles.  Delivery of goods can amount to an offer. Silence cannot be deemed as acceptance. But beware - conduct can. Therefore, if you retain and use the goods outside the specified trial period, you may be deemed in law to have accepted them.

What is "unsolicited"?

Unsolicited goods are goods received without any prior request.  This includes situations where you may have previously responded to an advert, ordered, paid for and received the goods, and some time later you receive further unrequested goods from the same company.

Do you have to take care of the goods?

By having unsolicited goods in your possession you are known as "an involuntary bailee". The legal position of an involuntary bailee is not completely clear, however, you would be under a duty to take reasonable care of the goods whilst they are in your possession.  Therefore, you must ensure that neither you nor your employees damage or lose the goods.  It is advisable to keep them in their original packaging and in a safe place.

Practical steps

Though the 1971 Act does not apply when the recipient is a business, it does set down useful guidelines that should be followed.  As soon as the unsolicited goods are received it is important to send a written notice on headed paper to the supplier. You should include the following:

1. We have received goods which were not ordered. It is not the practice of this business to accept unordered goods that arrive without an official Order Form and Order Number.
2. The goods will be retained at our premises for 30 days (you may want to give a specific date).
3. If they are not collected within this time they will be disposed of.
4. Under no circumstances do we accept liability for payment.
5. Clearly state the address of your premises and the hours within which the goods can be collected.
6. Keep a copy for your records for at least six years. 

There is no obligation upon you to re-deliver the goods to the sender.
 
A Defence will be based on your non-acceptance of the goods. Therefore, it is important to seek legal advice immediately if the sums involved merit this.
 
Should you wish to discuss the information contained in this article further, or have questions relating to this area of law, please contact Tony Sutton on 0208 296 6703 or email tony.sutton@colemans-ctts.co.uk.