First Principles of Business Law

The regulation of undesirable business practices

5. Protection against unfair business practices

5.8 Unsolicited goods

 

 

 

A, a publisher of books and magazines, has thousands of unsold copies of a book called 'Australian Gardens'. A obtains a mailing list and posts a copy of the book to every fifth person on that list, asking them to examine the book and, if they like it, to send payment of $25 to A. If they do not want to pay they are asked to return it by post to A, who promises to refund the cost of the postage. B receives a copy of the book. He decides neither to pay for it nor to return it: he simply leaves it on the floor of his porch outside the front door of his house. Six weeks later, B receives an invoice from A, saying that B owes A $25, and demanding immediate payment. Meanwhile B's dog has found and chewed the book.

Click here to see section 40.   Click here to see section 41.

(a) By sending unsolicited goods to B, and demanding payment for those goods, A has breached the provisions of the ACL. But if A can show that B did not return the book, or that B failed to look after it properly, he will not be liable to pay any penalty.

(b) Sending unsolicited goods to B, and demanding payment for those goods, is not a breach of the provisions of the ACL if the person who sends the goods indicates that they will pay the costs associated with returning them by persons who do not wish to keep them.

(c) By sending unsolicited goods to B, and demanding payment for those goods, A has breached the provisions of the ACL and is liable for a monetary penalty. It will not assist A to show that B did not return the book, or that B failed to look after it properly.

 

 

 

 

 

 

 

 

 

 

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