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consumer

Inertia selling: What happens if you are sent goods you didn't order?

Key Takeaway

Inertia selling involves sending goods to someone who didn't order them, then demanding payment. In New Zealand, recipients are generally not liable to pay for unsolicited goods, nor are they required to return them. After a certain period, these goods typically become the recipient's property. Suppliers demanding payment for unsolicited goods commit an offence.

Inertia Selling: What Happens if You are Sent Goods You Didn't Order?

Inertia selling, also known as sending unsolicited goods, refers to the practice where a supplier sends goods to a person without any prior request, then attempts to demand payment for them or implies an obligation to return them. In New Zealand, specific legal protections exist under the Fair Trading Act 1986 to address this practice, safeguarding individuals from unwarranted financial obligations.

What are Unsolicited Goods?

An item is considered unsolicited goods if it is sent to a person who did not request it [Source: Fair Trading Act 1986, s 21A(1)]. A request for goods must be specific; simply receiving a promotional item, entering a competition, or responding to an advertisement for information generally does not count as a request for the goods themselves [Source: Fair Trading Act 1986, s 21C].

Goods are not considered unsolicited if they were supplied under an existing contract, or if the recipient knew they were intended for someone else and could reasonably contact that person or the supplier [Source: Fair Trading Act 1986, s 21D].

Recipient's Rights Regarding Unsolicited Goods

Individuals who receive unsolicited goods have clear rights and protections:

  • No Obligation to Pay or Return: A person who receives unsolicited goods is not liable to pay for them, nor are they liable to return them to the supplier [Source: Fair Trading Act 1986, s 21A(2)].
  • Not Liable for Loss or Damage: The recipient is not liable for any loss or damage to the goods, unless the loss or damage was caused by a wilful and unlawful act by the recipient, or by gross negligence [Source: Fair Trading Act 1986, s 21I]. Gross negligence means a very serious and obvious failure to take reasonable care.
  • Goods Become Property of the Recipient: If the supplier does not recover the goods within a certain period, the goods generally become the property of the recipient. This period is three months from the date the recipient received the goods, or one month from the date the recipient notified the supplier (in writing) that they did not want the goods, whichever is earlier [Source: Fair Trading Act 1986, s 21J]. This notification must include the recipient's name and address and state that the goods are unsolicited goods [Source: Fair Trading Act 1986, s 21J(2)].

Supplier's Obligations and Prohibited Actions

The Fair Trading Act 1986 places strict obligations on suppliers to prevent inertia selling practices:

  • Prohibited Demands: A supplier of unsolicited goods must not demand payment for them, nor can they take any action to recover payment for them [Source: Fair Trading Act 1986, s 21A(3)].
  • Other Prohibited Actions: It is an offence for a supplier to assert a right to payment for unsolicited goods, to demand payment, or to threaten adverse consequences (such as damage to credit rating or legal action) for non-payment [Source: Fair Trading Act 1986, s 21F(1)].
  • Right to Recover Goods: A supplier may recover unsolicited goods at their own expense at any reasonable time. However, the recipient is not obliged to permit the supplier to enter their property for recovery if the supplier has failed to identify themselves or has been unreasonable in their attempts to recover the goods [Source: Fair Trading Act 1986, s 21E].
  • Offences and Penalties: A supplier who contravenes these provisions commits an offence and may be liable for penalties [Source: Fair Trading Act 1986, s 40]. The Commerce Commission may apply to the court for an injunction to prevent a supplier from continuing such practices [Source: Fair Trading Act 1986, s 21L, s 41]. An injunction is a court order requiring a party to do or refrain from doing a specific act.

Relationship with the Consumer Guarantees Act 1993

The Consumer Guarantees Act 1993 (CGA) primarily applies to goods and services supplied in trade to consumers, ensuring they are of acceptable quality, fit for purpose, and match descriptions [Source: Consumer Guarantees Act 1993, s 6, s 7]. Since unsolicited goods are by definition not requested or purchased, the CGA generally does not apply to the initial receipt of such goods, as there is no consumer transaction or 'supply' in the conventional sense [Source: Consumer Guarantees Act 1993, s 2, definition of "supply"]. The primary protections against inertia selling are found within the Fair Trading Act 1986.

When to Seek Independent Legal Advice

Receiving unsolicited goods can sometimes lead to confusion or persistent demands. While this article provides general information, it is not a substitute for professional advice tailored to specific circumstances. Individuals who are facing ongoing demands for payment, threats, or believe they have been the victim of an offence under the Fair Trading Act should consider seeking independent legal advice. For assistance with consumer protection issues, individuals can contact the Commerce Commission, or seek guidance from Community Law Centres which provide free legal services.

Key Resources