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The FTC says:

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

However (for example) Maine's website says:

A person is guilty of theft if the person obtains or exercises control over the property of another that the person knows to have been [...] delivered under a mistake [...] and [...] the person fails to take reasonable measures to return it. Violation of this paragraph is a Class E crime.

These two appear to contradict.

Does this mean this is actually different across states?
Is the FTC potentially giving people advise that might get them in trouble with their state?
What's the rule on whether you can legally keep merchandise that was mailed to you by mistake?

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Reading the examples from the ftc site what they mean is if someone sends you a good (intending for you to be the one who owns it) and asks you to pay for it, then it counts as a free gift

If a good was accidentally sent to you but intended for someone else, then you keeping the good is theft.

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  • 2
    The FTC rule is also limited to a certain class of people sending stuff in the mail (basically merchants). It doesn't apply to an ordinary person not engaged in business. – ohwilleke Nov 15 '17 at 14:58
  • This question has been around for a long time. Even going back to maritime law. Pretty much, the carrier is at fault, and upon delivery - it's no longer an active package protected by federal package laws. definitions.uslegal.com/m/misdelivery – Kyle Wiering Dec 28 '19 at 18:01
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Both Federal2 and Maine law prohibit anyone who sends you merchandise you did not order from billing you for it or from pressuring you to return it. By law, you may keep the merchandise and consider it a gift. Of course, if the merchandise is delivered to you by mistake, instead of to the person named on the address, you cannot keep it.

from http://www.maine.gov/ag/dynld/documents/clg12.pdf

This seems to say that it comes down to whom it is addressed to. As long as the merchandise is addressed to you, you may keep it. If it is addressed to someone else, then you are obligated to make reasonable efforts to either return it or deliver it to the intended recipient.

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The FTC site doesn't seem to be a law site, but tries to explain things to lay people. And they are a bit careless at that. Have a look around on this site, and you often find questions "if I do X, is that legal or not", and every answer starts with a big "it depends". That's missing on the FTC site, which makes their answer quite misleading.

One way of doing business that has gone out of fashion was this: You as a business intentionally send merchandise to people who never asked for it. Then you ask for payment, usually a lot more than the merchandise is worth. Some people don't know what to do, don't know how to return the items to you, and when you send a bill and threaten with lawyers, they don't know what to do and pay. That's what the FTC site covers: In this situation, you have the right to just keep the merchandise without paying. Knowledge about this has been going around a bit, so you can see why this has gone out of fashion.

But the other situation is that a business is selling stuff legitimately. Someone (not you) ordered merchandise and paid for it, and due to some mistake the merchandise is sent to the wrong address. That's a totally different situation, and you have absolutely no right to keep merchandise that was destined for someone else. That's what your second quote covers: Keeping that merchandise is plain theft.

Now look at the FTC site again. What they say absolutely covers the second scenario, but they are not a legal site, they are just plain careless. Dangerously careless. What it should say: "If you receive merchandise which you didn't order, and which is intentionally sent to you in order to make you buy it when you had no intention to buy it, then you have a legal right to keep it".

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