If a retailer sends you something you didn't order, can you keep it?

Question

This Consumerist article discussing a Wal-Mart shipping mishap involving a customer receiving extra iPods argues that the FTC ruling regarding unsolicited goods means that you can keep good as a result of a shipping error. That is, if you did solicit goods, but the wrong ones were sent.

When I've tried getting more information on the legal context regarding this law in the USA, I seem to mostly find opinions and not any real citations or analysis of legal precedence and regulation. Like the Consumerist article, they don't seem to be clear depictions of the legal environment.

It seems that many retailers operate under the assumption that if they make a mistake and ship the wrong thing, but the original Rule's wording doesn't seem to account for errors:

Unordered Merchandise
Whether or not the Rule is involved, in any approval or other sale you must obtain the customer’s prior express agreement to receive the merchandise. Otherwise the merchandise may be treated as unordered merchandise. It is unlawful to:

1. Send any merchandise by any means without the express request of the recipient (unless the merchandise is clearly identified as a gift, free sample, or the like); or,
2. Try to obtain payment for or the return of the unordered merchandise.

Merchants who ship unordered merchandise with knowledge that it is unlawful to do so can be subject to civil penalties of up to $16,000 per violation. Moreover, customers who receive unordered merchandise are legally entitled to treat the merchandise as a gift. Using the U.S. mails to ship unordered merchandise also violates the Postal laws.

Are there other regulations that apply, or is this the end-all be all? Can terms-of-service agreements with online retailers stipulate that you agree to return incorrect shipments?

Answer 1

39 USC 3009(b) says that

Any merchandise mailed in violation of subsection (a) of this section, or within the exceptions contained therein, may be treated as a gift by the recipient, who shall have the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender.

and (a) prohibits "the mailing of un­ordered merchandise". (d) then says

For the purposes of this section, “un­ordered merchandise” means merchandise mailed without the prior expressed request or consent of the recipient.

If you previously expressly request a jar of herring and they deliver a jar of herring, you have to pay for it. If instead they send you a jar of honey, then since you did not expressly order a jar of honey, they have violated the law. It doesn't matter whether they deep-down intended to send a jar of herring and accidentally sent honey, or they deep-down deceptively, deliberately and maliciously sent you honey – you still didn't order honey. So it isn't necessary for the law to say anything about error, since the effect of the law is clear enough without saying "whether deliberately or by error".

TOS wording cannot override federal law.

Answer 2

The merchants use smoke and mirrors to make people think they have to do whatever is in the merchant's best interest. Most of the terms of service or conditions of use are not enforceable because they are directly in opposition of legislation that protects consumers and is curiously drafted in nearly the same language as the terms in question. The fact is that these stores put these terms in there, knowing they're BS but banking on the fact that people wont know their rights. This falls into an area of the law thats not really policed because there isn't any money in it. If I am told in bad faith that I have to return something that was sent as a mistake but is really considered unordered merchandise by the FTC, I haven't actually accrued any damages, therefore I am not able to take action against anybody. No lawyer is going to take a contingency case against a giant retailer for the mileage I racked up on an extra trip to the UPS store. First off, it costs more money and time and that is what the big retailers are counting on. Compared to the average person, they are made of time and money where we have other things to do like feed families. They are also happy to toss around funds that amount to a rounding error in the coffee fund on their next 10Q because it sends the signal to other potential complainants that they are going to have to bring their A-game... and then wait for years while a mountain of paperwork is processed by the court. Overall, they are willing to spend more time and money than one would think rational because it keeps things the way they are. Do you have any idea what would happen if everybody thought they could dispute receipt of an item if it was the wrong color or size? The world would explode and the cost of goods would skyrocket because everybody would then have to pay for all the fraudulently obtained items from everybody who would never again receive the right item, somehow. That cost would be built into each and every other item, just like the cost of loss is built into the items we buy already. If 10% of things fall off a truck, we end up paying 10% more, in a very, very simple model. If a lemonade stand loses half of its lemonade because its hot and I drink lemonade by the gallon standing on the sidewalk, trying to sell the rest of the lemonade, know that you are going to cover all my costs of else it is not worth my time as a merchant. That is the way the invisible hand of the market slaps the crap out of all of us, in economics and in online retail.
If enough people said something about getting lied to and abused by these seemingly customer-friendly companies, they might change, but as of now there isn't any incentive to do so because there arent enough people that know about things like credit card disputes. I knew someone that wasn't aware that a manager is one question away when speaking with customer service. They simply took "no" to mean exactly that and did exactly as customer support hopes: they went and sat back down and played with their toys until it was time to be picked up by an adult.