Wife has been delivered TWO phones...

[jonathan_phang]

All,

I've recently been speaking to my wifes mobile company to negotiate an upgrade and part of that was to receive a new phone. They managed to cock up the delivery for a week and after discussing with CS they managed to sort it out for delivery again.

However, this morning, I've found that she has received 2 phones - I'm guessing that one is from the original delivery that was messed up etc, then the second was from when I called to rectify the situation.

Now, the thing is... what can I do here. Everyone at work has told me to stop being a berk and just sell the other one, but I'm an honest person and feel a but guilty and it would feel like we have stolen it. What is the legal standpoint here? Can they call up and demand it back? Or is it just the CSR's fault for not checking the delivery status properly before sending another?

To be honest - wish they would have just sent one correctly the first time - waaaaay too much hassle!

Thoughts

JP

[golwg]

Up to you at the end of the day. Only you can decide.

You could send it back or wait to see if they contact you about it?

[Rob_B]

As I understand there are/were rules regarding unsolicited goods being delivered becoming yours after some period of time unless collected but the phone(s) ARE solicited so not sure where you'd stand.

Personally I'd sit on it for a bit (but in no way recommending you should do this) or await Saracen to pop in

[abaxas]

Just tell them about it. They are resposible for any costs incurred in collecting the device, make sure you charge them accordingly or if they dont pay, maybe no effort at all.

Their mistake, make them sort it out.

[daniel_owen_uk]

Keep it for a month or two, if nothing is said, I say ebay it.

What phone is it?

[finlay666]

Tell them you received 2, ask if they are going to arrange collection, if not you are claiming ownership as a good will gesture for the time you were inconvenienced

[Saracen]

The moral thing to do, obviously, is notify them of their mistake.

If you're asking if you could, or snould, get away with a free phone, well, the "should" is up to you. From a legal perspective, and with the usual caveat that I;m not a lawyer so if you want advice, consult someone that is .... my opinions would be :-

• 
  the "unsolicited" goods thing wouldn't apply. That's designed to cover situations where people send you something out of the blue, and then expect you to either pay for it or put yourself to inconvenience to return it, which is a rather obnoxious marketing technique some firms used to use. So, to stop firms doing it, if you receive such goods, entirely unsolicited, you can now treat them as a gift. And if the firm that sent them tries to bill you, they commit an offence. This combination pretty much achieved the desired effect, which was to stop the practice of sending goods cold. Nobody does it any more. It is not, according to a lawyer friend I discussed this with, intended to cover mistakes, and nor does it. So it isn't relevant here.
  
• where do you stand if you keep the phone? Well, IMHO, as a non-lawyer, I'd point out that it certainly seems to come very close to the definition of theft. But "close" and "is" are different.

Theft, according to the '68 Act, is

A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

That contains several elements :-

- dishonesty
- appropriating
- intent
- permanently depriving

If you keep, and especially if you sell, the phone, it's pretty clear you are "permanently depriving" the rightful owner. If you keep, and wait .... then return it when asked, well, that's different. But if you refuse to return it when asked, well you're back to permanently depriving again.

Next, appropriating. That word is carefully chosen. It certainly means more than taking, knowing it belongs to another. The basic premise is that just about all property belongs to someone else, so if you have it knowing that, you've appropriated it. I'll come back to this point in a bit, but certainly, I would suggest that keeping it knowing it was sent in error would be "appropriating".

How about "dishonestly"? Can you see yourself arguing that you really thought one was a gift? because that's about the only way keeping what what is clearly the result of error is anything else. Do you know it belongs to someone else? Yes. So how is keeping it and hoping they don't notice anything else? And, if the worst came to it, which it almost certainly won't, do you see yourself standing before a magistrate seriously trying to argue that you thought they intended you to keep it?

Finally, "intent". That one might be more slippery. What did you intend? If you borrow a CD from a friend, without telling them, is it clear you intended to keep it permanently? If you took something believing (and I mean genuinely) that they meant for you to have it, is it theft? Obviously, no, even if you were wrong.

What about if you find a wallet laying in the road? Can you just keep it? No, you can't. Would you expect someone to be entitled to keep your wallet if it fell out of your pocket, or would you feel it still belonged to you?

If property is clearly abandoned, and you find it, then you can keep it. But if not, you'd be expected to take reasonable steps to find the owner before just keeping it. Those steps might include ringing them if their number is in the wallet, or handing it to the police. If you do the latter, and after a suitable period no owner can be traced, then you've taken reasonable steps and, by handing it to the police, you clearly have no intent to be dishonest.

A friend of mine found a rather expensive hifi system, brand new and boxed, laying by the roadside on an industrial park one night. He handed it to the police and, a few weeks later, they handed it back as, despite them saying it was most likely stolen and dumped, they couldn't trace it, couldn't be sure it was stolen and it hadn't been claimed. It ended up rightfully belonging to my friend, who then quite legally sold it (and kept the receipt from the police, just in case of problems, but there never were any).

Anyway, even finding goods laying in the street can be regarded as theft if you fail to attempt to return them to their owner. You're not obliged to pick them up and take them, or to contact the owner, but if you do take them, it could be classed as theft if you do not seek to identify the rightful owner because, unless they are clearly abandoned, they do have a rightful owner, and it isn't you.

Of course, what might theoretically be theft, and what would in practice lead to charges may well be different. I doubt that you'll end up charged with theft if you kept a phone delivered in error .... but if it were me, I wouldn't be interested in taking the chance. Whether you are is, of course, entirely up to you .... and your conscience.


So, from a pragmatical perspective, I'd say you've got three options :-

1) keep it, keep quiet and hope. Perhaps sell it, and risk having problems if they want it back. Is it worth it? Not to me it isn't.

2) contact them and let them know. If they still don't collect after a reasonable period, well .....

3) Just send it back.

Personally, I'd opt for 2). Contact them, let them know they've sent the second one in error and ask them to collect. I'd do it in writing, keep a copy and send it recorded. If you have an email address, I'd also send it by email and cross-reference the letter and email to each other. I would also given them a reasonable period of time to collect, at their expense, after which I'd inform them I will be disposing of it.

Alternatively, you could do 1). Keep quiet, wait and after some months, you could assume they've lost track and dispose if it, but is it legal to do that? Dubious, I'd think. It's not quiet like just finding something, since the owner sent it and therefore presumably knows where they sent it. Are you liable expending time or money for correcting their mistakes? I doubt it, but nor do I think you're entitled to just keep the phone.

If, however, you notify them (and can prove you did) then, I can't see how it can possibly be claimed you acted dishonestly, as per the Theft Act, and if you've told them about it and they don't bother to collect, then I'd feel it reasonable to believe they have "abandoned" it, and at that point, finder's keepers.

Once again, since this is not just a forum debate but a real situation .... I Am Not A Lawyer. I've discussed this type of situation with one, and read up on it, in the past, and as far as I know I right, but after all, I'm just a bloke on the internet. You're welcome to my opinion, but advice it is not, so if you choose to do what I would, on your head (and not mine) be it.

[Saracen]

Just tell them about it. They are resposible for any costs incurred in collecting the device, make sure you charge them accordingly or if they dont pay, maybe no effort at all.

Their mistake, make them sort it out.

Or to put it a tad more concisely than I did .... wot he ^^^^ said.

[chuckskull]

One angle no-pones mentioned is that the company probably keeps the IMEI numbers, I imagine one will be deactivated shortly as they'll assume it's lost/stolen. So if you do sell one there's a good chance it'll be a brick soon enough, or worse the one you keep will be the brick.

Unless the phone is encrusted in diamonds and dunked in platinum, I doubt the profit of the sale will be worth the hassle.

[jonathan_phang]

All, thanks for the opinions - in all honesty, I was more intruiged by the legality behind this situation rather than asking if I could 'get away' with it. Saracen, thanks for the write up, I know you're not a lawyer, but you've almost turned into the unnoficial Hexus one!

As I stated in my OP, I feel guilty even having it, and will try to contact them tonight about it. The irony here is that both the phones are the wrong colour than what was ordered for my wife, so I'll be contacting them for a pickup anyway (!!!). I should be able to return the other one at the same time too, so that should kill 2 birds with one stone.

Thanks again,
Jonny

[Rob_B]

I doubt they'd block it, in order for it to be sent it must have gone through a delivery process so it would just be flagged as a normal customer's phone, even if they did a 'stock check' they wouldn't know which phone went to who in error.

Contact them (email + letter as Saracen mentioned) & tell them to collect it at their expense within X days/weeks. Advise them that if they do not collect it within that time you assume they wish you to keep it as a goodwill gesture.

Then tell them you may or may not be in on a certain day between the hours of 9am & 6pm for collection, their driver will just have to get lucky (see what I did there?!)

Don't send to them at your expense unless they give you the money before you post, I'd also assume a goodwill gesture for your time posting would be in order

[Rob_B]

I should be able to return the other one at the same time too, so that should kill 2 birds with one stone.

Be aware, unless the courier has on his sheet to specifically collect 2 phones then do not give the other to him, it'll never be seen again.

[jonathan_phang]

Be aware, unless the courier has on his sheet to specifically collect 2 phones then do not give the other to him, it'll never be seen again.

Yeah good point. I've returned one handset under a 7-day returns guarantee previously and the courier gave me a specific bag that I had to place the box into and then seal it. If the wife cant live with the red phone then things will be simple, as they are going to have to come anyway - but I'll be explicit about the TWO bags.

Cheers, JP

[Hicks12]

Out of interest, what phone was/is it?

Id say ring up/email them stating that u received one extra and just hope they dont collect it .

[jonathan_phang]

Well, the phone is a Nokia 5800 Xpress music. I have one myself personally and its a great phone. I'd be interested to see what people on this forum would have done - are the polls that you can setup fully anonymous? I wonder what proportion would have kept it and sold it on (Not being judgemental in any way though)..

Anyway, a bit OT er... from my own thread

[Saracen]

.... are the polls that you can setup fully anonymous? .....

Fully? No. From other members, yes, as long as you don't set them as public. Admins can check, though.