What to do if seller sends more than ordered?

Question

I recently ordered one volume of sheet music online from a boutique publisher in The Netherlands that only accepts orders via email (I'm located in Sweden). My email clearly stated a single product title along with the product code.

When I received the order, they had sent me two volumes along with an invoice for both.

What should I do?

1. Keep both volumes but only pay for the volume I ordered?

2. Keep the volume I want and return the other, discounting the amount I pay with what it costs me to return the other volume? I'm really annoyed that I would have to go to this trouble.

3. Something else?

I already emailed them again pointing out their error and asking what I should do (left open without suggesting a solution), but didn't receive a reply. Neither did I receive an order confirmation in the first place. My email records show that I have emailed them twice more in the past inquiring about publications but never received a response to those either...

Two more issues: the volume I wanted is at a higher price on the invoice than on their website (by 49 eurocents), and the shipping was probably more expensive than would have been for a single volume.

Answer 1

Someone knowledgeable pointed out your situation, where a seller you have a contract with delivers more than you ordered, is well known to commercial law. It is covered by contract or sales law, where it is known as the problem of excess quantity.

There are two general principles of the law of excess quantity:

First, buyers can reject the excess quantity; if they do, sellers must pay to have it removed.

Second, if buyers accept the excess quantity, they get to pay for it at the contracted rate.

It’s not clear whether commercial law, which is aimed at business dealings, applies to consumers such as yourself. You may be covered by a separate consumer protection law. However, these principles are consistent with the BBC story explaining “Why you can't keep online order freebies.”

It is interesting that at least some jurisdictions that prohibit “unsolicited” supply or delivery of goods explicitly list "excess quantity" as an exception to that ban.

Excess quantity was covered explicitly in various drafts of a proposed EU sales law. Since none of those proposals were adopted, it appears you may be covered by Swedish law. From the little I could understand online, Sweden follows the standard “excess quantity” law. (Again, subject to the caveat that consumer protection laws may vary.)

Answer 2

Your interpretation of the EU law is correct, Art. 27 says

The consumer shall be exempted from the obligation to provide any consideration in cases of unsolicited supply of goods, water, gas, electricity, district heating or digital content or unsolicited provision of services, prohibited by Article 5(5) and point 29 of Annex I to Directive 2005/29/EC. In such cases, the absence of a response from the consumer following such an unsolicited supply or provision shall not constitute consent.

The 49 cent shipping issue is not entirely clear since sometimes shipping is an estimate, not a firm offer. You legally owe whatever the advertised price is plus something for shipping to the extent that that is part of the contract. The company violated the law by sending you unsolicited goods.

You could propose various schemes for returning the other volume where your time, trouble and expenses for returning the item are billed to them – but you should be sure that they agree to this, don't just do it and send a bill.

Answer 3

Great question. Unfortunately, I don't think EU law allows you to keep what the BBC calls "online order freebies." As I read the EU Code, "unsolicited goods" are not any goods that show up at your house unsolicited. They are goods that are sent to you as part of the well-known scam of "inertia selling."

In a decision handed down last year, the EU Court of Justice explained that "inertia selling" has two prongs:

1) Demanding...payment for...

2) products supplied by the trader, but not solicited by the consumer...

From Colin's description, it doesn't seem his seller meets the "demanding...payment" prong of this definition.

Too bad you can't sue for bad customer service. This looks like one of those instances where trying to do the right thing by fixing someone else's careless mistake will end up costing you more in time and frustration than their mistake costs them.