Members straycat113 Posted November 30, 2010 Members Share Posted November 30, 2010 This had happened with another online store with their 20% off coupons and guys stacked them up and got a lot of wicked gear on the cheap. A friend of mine had two EBMM guitars a 25th and a JP coming when they caught the glitch before his order was shipped and said they put an end to it, but those who received their gear already were able to keep it. You did the right thing and they told you to keep it so I would wait until your credit card statement came and if all is correct throw it on the bay for $3,500. Hey it is NEW and someone will look to save $2,200, so it turns out to be a double score. Link to comment Share on other sites More sharing options...
Members Notes_Norton Posted December 1, 2010 Author Members Share Posted December 1, 2010 I've checked the statement, they didn't add anything. I wrote the letter and if they don't want it back by January, I am covered according to the FTC. Then somebody gets a Mojo MIDI fly at a good price, I get a few bucks in my pocket, we both win and I can sleep with a good conscience. Thanks again A_Gitarman for posting the FTC link. Notes ? Link to comment Share on other sites More sharing options...
Members AzCat Posted December 1, 2010 Members Share Posted December 1, 2010 I wrote the letter and if they don't want it back by January, I am covered according to the FTC. No, you are not. If there's a magical drop-dead date beyond which you're entitled to keep the mistaken shipment the FTC and their suggestions will NOT determine when it will be. When you purchased a guitar from an online seller you agreed to do so under their standard terms and conditions. Here's a sample term you may find interesting from one popular online seller of musical gear: These terms and conditions shall for all purposes be governed by and interpreted in accordance with the laws of the State of Oregon as those laws are applied to contracts entered into and to be performed entirely in Oregon, without regard to conflicts of law provisions. Any suit or proceeding arising out of or relating to this Agreement shall be commenced exclusively in state or federal court in Jackson County, Oregon, and you irrevocably submit to the exclusive jurisdiction and venue of such courts. The punch line: if you bought from this seller and they demand that you return or pay for the guitar after your imaginary January deadline it would be your purchase contract with the seller as interpreted under Oregon law, and nothing the FTC has to say, that would determine whether and how much you would be liable for. If you wanted to argue with them about it you would have to go to Oregon to do it or hire a lawyer there to do it for you. From another popular online seller of musical gear: This Agreement shall be treated as though it were executed and performed in Fort Wayne, Indiana, and shall be governed by and construed in accordance with the laws of the State of Indiana (without regard to conflict of law principles). Any cause of action by you with respect to the Site (and/or any information, Documents, products or services related thereto) must be instituted within one (1) year after the cause of action arose or be forever waived and barred. Those folks give you a year to take any necessary action against them, odds are pretty good that whatever sort of tribunal might eventually review a case brought by them against you would find a similar amount of time reasonable on their part. Or there could be a statutory period but you have no idea what it might be because you have no idea right now which state law you've agreed to abide by (or that you've agreed to abide by any particular state's law judging by your posts thus far). Odds are the seller will catch the mistake when their inventory control catches up to their customer service records and when they do they'll probably just bill your card for the difference. At that point you'll either have to pay, try to decline the charge (while admitting to your credit card company that you knew of the mistake and kept the goods anyway) or try to return the instrument. You might want to read carefully the return policy of the merchant from whom you purchased, this policy is from one famous for loudly announcing an unconditional 45-day money-back guarantee: If you are not completely satisfied with any product, return it for a full refund of the product purchase price, full credit, or exchange of your choice. We give you 45 days from the shipping date. That's the best guarantee in the music industry. ... but keep reading and a few lines further down we find: Stringed instruments priced at $1999.00 or more must be returned within 10 days of shipment. If you bought from them you may be SOL already as it's likely been more than 10 days since they shipped you the guitar. If they find the error they'll probably just bill you for the difference and thank you for admitting receipt of the more expensive guitar thus making their problem of proof much simpler. At that point there won't be a damn thing you can do other than pay, at least not in practical terms as any solution will probably involve you paying a lawyer more than the MSRP of the guitar in question with no guarantee that you won't have to pay both for the lawyer and the guitar. If you keep it just plan on paying for it eventually and know that the FTC's suggestion is not going to protect you at all when the seller attempts to collect. You could get lucky but for that to happen they're going to have to not notice or they're going to have to admit that they intended that you receive the much more expensive instrument as a substitute for what you actually paid for or someone far enough up the food chain to have authority to do so is going to have to tell you to just keep the guitar with their compliments. I know the foregoing will be extremely unpopular with the crowd here that wants to get something for nothing but there it is. Link to comment Share on other sites More sharing options...
Members Notes_Norton Posted December 3, 2010 Author Members Share Posted December 3, 2010 Well the phone rep told me to keep it. The follow up e-mail was unanswered. I wrote to them on paper and we'll see where that goes. Notes Link to comment Share on other sites More sharing options...
Members Vibroluxman Posted December 10, 2010 Members Share Posted December 10, 2010 If you have any lawyer friends you may want to talk with them as well. CYA thrice over for that much money in my opinion. Link to comment Share on other sites More sharing options...
Members aliensporebomb Posted December 10, 2010 Members Share Posted December 10, 2010 Either the force is with the OP or the stars are in just the right alignment. Keep us posted! Link to comment Share on other sites More sharing options...
Members StratGuy22 Posted December 10, 2010 Members Share Posted December 10, 2010 You did the right thing, calling it in. Sell it and do what you want. Link to comment Share on other sites More sharing options...
Members Notes_Norton Posted December 14, 2010 Author Members Share Posted December 14, 2010 I sent them a written letter just to be sure the phone rep was doing the right thing. If they don't ask for it back by January, I'll probably put it up for sale. Notes Link to comment Share on other sites More sharing options...
Members Oaksong Posted December 14, 2010 Members Share Posted December 14, 2010 No, you are not. If there's a magical drop-dead date beyond which you're entitled to keep the mistaken shipment the FTC and their suggestions will NOT determine when it will be. When you purchased a guitar from an online seller you agreed to do so under their standard terms and conditions. Uh, no. Federal law overrules contracts. Duh. And state law in most cases, double-duh. Link to comment Share on other sites More sharing options...
Members RaVenCAD Posted December 14, 2010 Members Share Posted December 14, 2010 Uh, no. Federal law overrules contracts. Duh. And state law in most cases, double-duh. Ok, so what's the federal law regarding erroneous shipments and willfully keeping property you didn't pay for? Link to comment Share on other sites More sharing options...
Members Oaksong Posted December 14, 2010 Members Share Posted December 14, 2010 Ok, so what's the federal law regarding erroneous shipments and willfully keeping property you didn't pay for? 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 © 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. © 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. --IANAL-- He didn't order it, they sent it. There may be other laws involved, you figure it out. He let them know, and has written them a letter, called them on the phone, etc. It isn't his job to store the guitar forever while not getting what he actually ordered. I couldn't find a time limit, and I'm not gonna spend any more time running through legal crap. that said, state laws might apply. Have fun. Link to comment Share on other sites More sharing options...
Members RaVenCAD Posted December 15, 2010 Members Share Posted December 15, 2010 That section only applies to items shipped WITHOUT REQUEST. Back when mail order was a new concept, companies would ship out products without an order and then demand payment. This guitar is a completely different situation. He placed an order and they shipped the wrong one by mistake. It's true that some companies have a policy of upgrading to the next highest model if what you order is out of stock, but this would be an extreme case of that. His shipment was simply a mistake, and when they catch it, no court in the land is going to side with him based on what you just posted. As I've said before, when someone that actually cares about the loss of a $5600 item gets involved, they'll be knocking on his door. At that time, he will need one of these three things: 1 - The guitar. 2 - The cash to cover the difference in price. 3 - A lawyer that enjoys a lost cause. There is just simply no way any company is going to eat $3100 over a shipping error. Link to comment Share on other sites More sharing options...
Members Dash4814 Posted December 15, 2010 Members Share Posted December 15, 2010 For fun, I talked to a lawyer about this situation. If he makes all reasonable effort to contact the seller and tell them their error, and the seller still says keep it, he'll just keep the damn thing and everybody's happy. "Reasonable" is what counts. A couple phone calls and an email is considered reasonable. And from the lawyer's email: "Besides, nobody's going to litigate this thing. There's also no way in hell they're going to charge him a difference, either. I'm not sure who these guys [note: he's referring to the forumites I mentioned in the email to him who are saying he'll be liable for paying the difference] are talking to, or what they think they know, but there's an awful lot of wiggle room for interpretation here. He's fine. Tell the 'legal eagles' to stuff it." So there you go. Link to comment Share on other sites More sharing options...
Members Vibroluxman Posted December 15, 2010 Members Share Posted December 15, 2010 I'll still stand by contacting a lawyer friend who knows about this stuff instead of asking a bunch of people on the internet... Link to comment Share on other sites More sharing options...
Members RaVenCAD Posted December 15, 2010 Members Share Posted December 15, 2010 are talking to, or what they think they know, but there's an awful lot of wiggle room for interpretation here. He's fine. Tell the 'legal eagles' to stuff it."So there you go. There's all kinds of lawyers out there.. From ambulance chasers to people that actually have a clue. I agree with being careful who you take advice from, especially when it comes to lawyers. Link to comment Share on other sites More sharing options...
Members rchiav Posted December 15, 2010 Members Share Posted December 15, 2010 That section only applies to items shipped WITHOUT REQUEST. Back when mail order was a new concept, companies would ship out products without an order and then demand payment. This guitar is a completely different situation. He placed an order and they shipped the wrong one by mistake. It's true that some companies have a policy of upgrading to the next highest model if what you order is out of stock, but this would be an extreme case of that. His shipment was simply a mistake, and when they catch it, no court in the land is going to side with him based on what you just posted. As I've said before, when someone that actually cares about the loss of a $5600 item gets involved, they'll be knocking on his door. At that time, he will need one of these three things: 1 - The guitar. 2 - The cash to cover the difference in price. 3 - A lawyer that enjoys a lost cause. There is just simply no way any company is going to eat $3100 over a shipping error. I missed the part in the law where it said mistakes were OK to bill someone for. He's tried to do the right thing. I don't think in court will find him liable with all the attempts he's made. You can't do that to someone. You can't tell them everything is fine multiple times, ignore the 3rd and 4th attempts to make sure it's OK and then cry foul somewhere down the line. At some point life has to move on and the OP has to be able to make decisions based on what they've told him. Link to comment Share on other sites More sharing options...
Members Dash4814 Posted December 15, 2010 Members Share Posted December 15, 2010 There's all kinds of lawyers out there.. From ambulance chasers to people that actually have a clue. I agree with being careful who you take advice from, especially when it comes to lawyers. Sorry he didn't agree with your expert assessment of the situation. The point the lawyer is making is he made a reasonable effort at transparency in this situation, which, under the law, is all he really needs to do. He also made the point that, for all practical purposes, there's absolutely no way they're going to bother litigating this, especially over a $3500 difference. (I think he's assuming he ordered from a big box like Music123 or something, the OP didn't say and neither did I). Link to comment Share on other sites More sharing options...
Members RaVenCAD Posted December 15, 2010 Members Share Posted December 15, 2010 Once he put his notification in writing, I think he started down the right path. I think his 1/1/11 cutoff for a reply is a bit short and it might happen after that date passes. All I'm saying is this... Don't take the word of someone sitting there making barely above minimum wage as the definitive answer. Call them back, ask for customer service, then ask for a CS manager. Tell them what happened. If that person (get their name, extension and ask for an emailed or written confirmation) says "no problem, it's on us", then it's probably ok. But a guy taking orders is not in a position of authority when it comes to something like this. Go a little higher on the food chain before you assume it's free and clear. His letter probably does that. But I'd still wait until I heard back from it before selling the guitar. Positive or negative, there will be a response to that letter because no company is going to eat that kind of loss without some sort of reaction. Link to comment Share on other sites More sharing options...
Members Pippers Posted December 15, 2010 Members Share Posted December 15, 2010 Man, some people just like to argue to their wits end. He's already done this. Every time he comes back with one thing, you add in another. Cripes. Waiting for the post where you're telling him to drive down to the store in person. Link to comment Share on other sites More sharing options...
Members sk8centilli Posted December 15, 2010 Members Share Posted December 15, 2010 Back to guitars... I rarely use the term instrument when referring to guitars, however this (all Parkers) technical marvel is indeed an instrument of high caliber: mahogany laced with carbon fiber and stainless steel. I miss it. Link to comment Share on other sites More sharing options...
Members RaVenCAD Posted December 15, 2010 Members Share Posted December 15, 2010 If they're local, that's not a bad idea! Link to comment Share on other sites More sharing options...
Members Notes_Norton Posted December 15, 2010 Author Members Share Posted December 15, 2010 I'm not willfully keeping it. I'm giving them 3 chances to get it back, If they don't want it back, it's their choice.The phone rep said I could keep it, so far I haven't heard anything to the contrary.I've done the right thing, the ethical thing, the moral thing, and the ball is in their court. If I don't hear from them by January, it goes up for sale. If I kept it and didn't say anything, that would have been willfully keeping something I didn't order.And no, they aren't local. I'm pretty amazed at their response, and to tell you the truth, I would have rather gotten the guitar I ordered. And if they want it back, they have to pay the shipping. I don't think I should eat return shipping for their error.The FTC suggested I wait 30 days. I got the guitar mid-November and I'm waiting until January to return or sell it (their choice).Anybody want to put in a pre-sale reservation? I can take Visa, Master Card or PayPal PM me if interested.Notes ? Link to comment Share on other sites More sharing options...
Members Vibroluxman Posted December 15, 2010 Members Share Posted December 15, 2010 If I buy it, will you ship me a $10,000 guitar instead Link to comment Share on other sites More sharing options...
Members Notes_Norton Posted December 16, 2010 Author Members Share Posted December 16, 2010 If I buy it, will you ship me a $10,000 guitar instead Nice try!!!! Notes Link to comment Share on other sites More sharing options...
Members Jimmy Chitown Posted December 16, 2010 Members Share Posted December 16, 2010 "No, sir. I received the Parker Dragonfly exactly as I ordered it. I was very happy with it. Thank you very much. I have, however, since sold it. Should I ever need another I will be happy to avail your services." Link to comment Share on other sites More sharing options...
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