I purchased a Macbook Pro (lap top computer) from Apple.  It had
defects, so I mailed it back to them and they were supposed to mail me
a brand new one, free of charge.  However, it turns out they
accidentally sent me two brand new ones in separate shipments!

From a moral standpoint it is clear that I should return the extra
computer, but from a stricly legal standpoint, I am curious to know
whether I am obligated to tell Apple about their mistake and return
the computer?  If I keep the computer (and Apple ultimately catches
on), are there legal actions they can take against me?

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Request for Question Clarification by tutuzdad-ga on 13 Mar 2006 12:20 PST

The answer may depend on the local laws. What state or country do you live in?

tutuzdad-ga

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Clarification of Question by jgpusa-ga on 13 Mar 2006 12:25 PST

I live in Virginia (USA).  Thanks.

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Request for Question Clarification by tutuzdad-ga on 13 Mar 2006 13:14 PST

This may be applicable under the circumstances. Let me know if this
raises enough alarm in you to be considered an answer:

"§ 18.2-103. Concealing or taking possession of merchandise; altering
price tags; transferring goods from one container to another;
counseling, etc., another in performance of such acts.

Whoever, without authority, with the intention of converting goods or
merchandise to his own or another's use without having paid the full
purchase price thereof, or of defrauding the owner of the value of the
goods or merchandise, (i) willfully conceals or takes possession of
the goods or merchandise of any store or other mercantile
establishment, or (ii) alters the price tag or other price marking on
such goods or merchandise, or transfers the goods from one container
to another, or (iii) counsels, assists, aids or abets another in the
performance of any of the above acts, when the value of the goods or
merchandise involved in the offense is less than $200, shall be guilty
of petit larceny and, when the value of the goods or merchandise
involved in the offense is $200 or more, shall be guilty of grand
larceny. The willful concealment of goods or merchandise of any store
or other mercantile establishment, while still on the premises
thereof, shall be prima facie evidence of an intent to convert and
defraud the owner thereof out of the value of the goods or
merchandise."

VA CRIMINAL CODE
http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-103

tutuzdad-ga

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Request for Question Clarification by tutuzdad-ga on 13 Mar 2006 13:16 PST

This may also be applicable:

§ 18.2-116. Failure to pay for or return goods delivered for selection
or approval.

If any person shall solicit and obtain from any merchant any goods,
wares or merchandise for examination or approval, and shall
thereafter, upon written demand, refuse or fail to return the same to
such merchant in unused condition, or to pay for the same, such person
so offending shall be deemed guilty of the larceny thereof. But the
provisions of this section shall not apply unless such written demand
be made within five days after delivery, and unless the goods, wares
or merchandise shall have attached to them or to the package in which
they are contained a label, card or tag containing the words,
"Delivered for selection or approval."

http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-116

How's that as an answer?

tutuzdad-ga

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Clarification of Question by jgpusa-ga on 13 Mar 2006 13:40 PST

Thanks, but I don't know if either of these clarifications apply to
me.  The first law you reference (§ 18.2-103) seems to be directed
towards people who steal something from a store, by "willfully
concealing" the product, or "taking possession" of merchandise.  I
certainly never willfully concealed anything.  And as far as "taking
possession," I suspect this is a matter of interpretation - but
couldn't you say I was "GIVEN possession," i.e. there was no action on
my part to actually TAKE anything...

On the second law you reference (18.2-116), it says the person must
"solicit and obtain from any merchant any good."  I would argue that I
never "solicited" the second computer.  It just landed at my doorstep
without my asking.  Furthermore, for this to apply, Apple would have
to demand in writing that I return the product within five days (it
has not yet been five days).

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Request for Question Clarification by tutuzdad-ga on 14 Mar 2006 08:06 PST

It it matters, I might inform you that I have been in professional law
enforcement for more than 20 years and I have some insight into the
interpretation of law. Having said that, this (intended for your
consideration) may be of interest to you.

In United States v. HELMS No. 96-1167 Crim. App. No. 31250 the appeals
court issued this opinion:

"The mistaken delivery of property to an individual who realizes the
mistake and simultaneously forms the intent to steal the property at
the moment of receipt constitutes larceny at common law. W. LaFave &
A. Scott, 2 Substantive Criminal Law § 8.2(g) at 342-43 (1986).
Furthermore, where the individual does not realize the mistake at the
time of receipt but realizes it later and then forms the requisite
intent, there is a larceny as well."
http://www.armfor.uscourts.gov/opinions/1996Term/96-1167.htm

I don't think you can get any more definitive that that. Assuming that
you are open to the notion that keeping the merchandise may in fact be
illegal, and you're not merely soliciting an answer that involves a
loophole, let me know if this works for you as a convincing answer.

tutuzdad-ga

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Clarification of Question by jgpusa-ga on 14 Mar 2006 09:20 PST

First, I am open to the fact that keeping the merchandise is illegal
and am not looking for a loophole.

Concerning your last posting on United States v. HELMS No. 96-1167
Crim. App. No. 31250, your quote seems to make clear that keeping the
merchandise would be illegal; however, it appears that that case was
heard in a military court.  As I'm not a lawyer I don't know how the
military law and civilian law differ or effect each other, and am thus
not certain that that case applies to me (as I'm not in the military).

Furthermore, what you reference is not a "law," but an opinion of a
court.  Again, I know very little about the legal system, and am sure
that this opinion of the court holds some importance under the "common
law" system that is used to a certain extent in the US, but I'm
interested to see an actual law that basically states that opinion
(and applies to civilians.)

The court referenced what looks like a law at the end of their
opinion, but I can't seem to find the text...
"The mistaken delivery of property to an individual who realizes the
mistake and simultaneously forms the intent to steal the property at
the moment of receipt constitutes larceny at common law. *****W. LaFave &
A. Scott, 2 Substantive Criminal Law § 8.2(g) at 342-43 (1986).*****"

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Clarification of Question by jgpusa-ga on 14 Mar 2006 09:27 PST

To the interested people out there:

I did a quick google search for "keeping unordered merchandise."  the
first site to pop up was from the Federal Trade Commission, and it
states:

Q. Am I obligated to return or pay for merchandise I never ordered?

A. No. If you receive merchandise that you didn?t order, you have a
legal right to keep it as a free gift.

Q. Must I notify the seller if I keep unordered merchandise without paying for it?

A. You have no legal obligation to notify the seller. However, it is a
good idea to write a letter to the company stating that you didn?t
order the item and, therefore, you have a legal right to keep it for
free. This may discourage the seller from sending you bills or dunning
notices, or it may help clear up an honest error. Send your letter by
certified mail. Keep the return receipt and a copy of the letter for
your records. You may need it later.

****Of course it also states:

Q. What should I do if the unordered merchandise I received was the
result of an honest shipping error?

A. Write the seller and offer to return the merchandise, provided the
seller pays for postage and handling. Give the seller a specific and
reasonable amount of time (say 30 days) to pick up the merchandise or
arrange to have it returned at no expense to you. Tell the seller that
you reserve the right to keep the merchandise or dispose of it after
the specified time has passed.

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Clarification of Question by jgpusa-ga on 14 Mar 2006 09:29 PST

Here is the link to the FTC site:
http://www.ftc.gov/bcp/conline/pubs/products/unorderd.htm

Although I already read that you live in Virginia, I still would like
to post how this case would be handled in Germany:

You donīt need to tell Apple, that they did a mistake. At the same
time, you are NOT the owner of the second computer shipped to you. But
you have the right to keep the computer at your place until Apple
takes measueres to (let) pick up the second computer. I donīt know for
how long exactly you have to wait until it is yours... Maybe someone
else can tell me this for Germany.

Easy law: If you dodnīt ordered something, you donīt need to pay for
this but also you donīt have any legal right to use the items! You use
- you pay.

Curious to see, how these things are handled in the USA...

Neither of these quotations by tutuzdad-ga seem to apply to this case.
The first refers to shoplifting in stores - "willfully conceals or
takes possession of
the goods or merchandise of any store or other mercantile
establishment,"
The second refers to someone asking for goods in order to examine them
with the undertanding that they must be returned.
I would say that morally, the person should phone Apple and tell them
of the situation. Apple should then pay for the return shippment of
the computer. Legally, the person could simply do nothing unless Apple
discovers the mistake and asks for the computer to be returned. Apple
should, of course, pay the costs of this. Legally, I would assume that
Apple would still own the unpaid-for computer, and I assume that the
person signed for both computers, so Apple would have proof of
delivery. Apple could sue for the computer, but I very much doubt it
would be worth the effort. Apple would likely just write it off.

Howdy jgpusa-ga,

The first scenario outlined by tutuzdad-ga would be the applicable one,
and the answer to your question.

"Whoever, without authority, with the intention of converting goods or
merchandise to his own or another's use without having paid the full
purchase price thereof, or of defrauding the owner of the value of the
goods or merchandise ... willfully ... takes possession of the goods
or merchandise of any store or other mercantile establishment ...
and, when the value of the goods or merchandise involved in the offense
is $200 or more, shall be guilty of grand larceny."

"Taking possession" just means to have possession, as in taking delivery,
etc. of the goods, which was the action taken.  An online store is a
"store or other mercantile establishment" as outlined above.

If Apple is not contacted about their mistake, then the "with the
intention of converting goods or merchandise to his own or another's use
without having paid the full purchase price thereof" section comes into
play.

Looking Forward, denco-ga - Google Answers Researcher

I'm not an expert in laws but, out of my reading of the first one of
Tutuzdad's quotations, I rather agree with Denco than with Ted. From
my understanding, it could be interpreted that you *are* "concealing"
the good. There's another practical reason. Eventually, the provider
will realized of the mistake. They will ask you to give it back --
will you still have it packed as new? If not, your situation will get
more complicated, given that you will have done a provable deliberate
action towards taking possession of a good that you know is not yours.
If yes -- because you did just in case you waited for them to contact
you about this -- what is the use of keeping it? And it may also
happen that the vendor decides to let it go, but you will probably
fall into the category of not-such-a-good-customer, and you probably
do want to count on them for customer service, guarantee claiming,
etc. Was it my question, I'd take Tutuzdad's clarification as an
answer, and act in consequence. Just my two cents.

Sounds like a free gift to me. Send them a thank you note. just
kidding. if you dont want it I can pay shipping to me,..... haw!

The below is from the site
http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t37t40+1457+65++%28POSTAL%20SERVICE%20PART%20IV%20-%20MAIL%20MATTER%20%29%20%20AND%20%28%2839%29%20ADJ%20USC%29%3ACITE%20%20%20%20%20%20%20%20%20

read (b)



39 USC Sec. 3009

-EXPCITE-

    TITLE 39 - POSTAL SERVICE

    PART IV - MAIL MATTER

    CHAPTER 30 - NONMAILABLE MATTER

-HEAD-

    Sec. 3009. Mailing of unordered merchandise

-STATUTE-

      (a) Except for (1) free samples clearly and conspicuously marked

    as such, and (2) merchandise mailed by a charitable organization

    soliciting contributions, the mailing of unordered merchandise or

    of communications prohibited by subsection (c) of this section

    constitutes an unfair method of competition and an unfair trade

    practice in violation of section 45(a)(1) of title 15.

      (b) 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. All such merchandise shall

    have attached to it a clear and conspicuous statement informing the

    recipient that he may treat the merchandise as a gift to him and

    has the right to retain, use, discard, or dispose of it in any

    manner he sees fit without any obligation whatsoever to the sender.

      (c) No mailer of any merchandise mailed in violation of

    subsection (a) of this section, or within the exceptions contained

    therein, shall mail to any recipient of such merchandise a bill for

    such merchandise or any dunning communications.

      (d) For the purposes of this section, "unordered merchandise"

    means merchandise mailed without the prior expressed request or

    consent of the recipient.

-SOURCE-

    (Pub. L. 91-375, Aug. 12, 1970, 84 Stat. 749.)

Forgot to mention you should let them know so you can return it. Ater
all it is like stealing.

I believe that the Federal statute concerning unordered merchandise
applies only to unwanted goods and goods mailed without authorization.
This is clearly not the case in the described scenario. The sitation
described by the customer is no different that than a financial
institution mailing duplicate checks by mistake.

You can get an authoritative opinion on the matter by contacting the
Bureau of Consumer Protection, Federal Trade Commission, Washington,
DC 20580

Let me know if this suffices as an answer.

tutuzdad-ga

I agree with Tutuzdad-ga. The unordered merchandise thing was designed
mainly to protect people from monthly book and CD clubs who would send
and bill for merchandise because you didn't explicitly tell them not
to. The statute requires that ordering something be an active
principle, rather than the result of inaction.

- Hammer