Can I be taken to small claims court? I ordered something on Ebay, paid for it and received it within a week. A week later I received the exact same item from a completely different vendor than the one I ordered it from. Trying to be honest, I contacted the second vendor and explained that they sent me this in error, thinking they would send me money to ship it back, but they only asked my name and address. This all happened in October 2021. Today I receive a certified letter addressed to me saying: You recently made a purchase for $xx.xx on October, 20, 2021(I never did), per order #xxxxx. You received the item on October 28, 2021 via USPS through tracking number xxxxxx. You kept your entire purchase after creating a chargeback for Card Absent Environment. You failed to withdraw your chargeback, chose not to refuse delivery, and failed to return the items. We would like to resolve this issue amicably. Please forward $xx.xx (the cost of your order) within fourteen days. If we do not hear from you by January 21, 2022, we will promptly file a lawsuit in small claims court. Sincerely, XXXXX Laguna Niguel, California I called the company and they said someone else ordered it, whose name I didn't recognize, and said I would need to pay for the scope or pay to ship it back to them. I feel like they should pay for the shipping, given that I never ordered it. I contacted them initially trying to do the right thing and now they threaten to sue me? Is this just an empty threat so they can recoup their money? Any answers would be greatly appreciated. Thanks
If someone sends you something that you did not request, that is &quot;unordered merchandise&quot;, and under US law, can be treated like a gift meaning that you do not have to return the goods or pay for it. Under the circumstances that you describe, this is not classic unordered merchandise. The vendor simply has to claim (and prove) that you did order the merchandise, which could be done in small claims court. What is unclear at present how any person could, out of the blue, decide to send you the same thing a week later. Innocent error is one possibility (slip-up by either party or some communication error by Ebay), as is fraudulent skullduggery (credit card fraud). The point is that the vendor would have to prove that you did indeed order the goods, so if they want to avoid paying for shipping (if we are still talking about a non-litigious response), they would need to provide compelling proof that you did indeed order the goods. This almost certainly will involve Ebay's tech staff (who would be in the best position to say where the order actually came from). So, yes, you could be sued in small claims court, and it really depends on how strong their proof is that you ordered the goods.
A simple EULA does not absolve you from legal responsibility. The law that you need to be acquainted with, if you are dealing with the US (i.e. might be sued in the US), is the Digital Millennium Copyright Act, in particular Title II, the Online Copyright Infringement Liability Limitation Act which states the "safe harbor" provisions. Aspects of DMCA safe harbor are covered in many Law SE questions. In essence, you have to provide a way for rights holders to complain that someone has infringed their copyright on there site, and you have to take down allegedly infringing material: and there are a number of legal formalities to attend to in doing this. The main point is that you can't just ignore the problem and hope it goes away, and you can't just say it is not your responsibility, which is what a simple EULA does. To be protected, you need a "designated agent" where complainers can contact you. You provide the information online (as well as stating the DMCA policy, which can be in the EULA), and also register that information with the Copyright office (online). The complaint has to be in writing, and most of the burden is on the author of the complaint, but you still have to be sure that the complaint is legally conforming. The complaint has to say what was infringed (e.g. the URL), the identity of the protected content (title of the book, for instance), and provide the complainer's signature and contact information. It also requires the complainer to say that they have a good faith belief that the material is illegally copied (no permission, and not otherwise allowed by law), and a perjury statement that the foregoing is accurate and authorized by the copyright holder. When you have a conforming notice, you must "expeditiously" remove / disable the infringing material (there is no definition of "expeditious"), notify the user, then wait for a proper counter-claim (same general form as the take-down claim but where the user denies the posting the material was illegal. If you get a counter-claim, you notify the alleged copyright owner and wait for them to file suit in 10 days. If they don't do that, you restore the material. Here is a sample complaint, and a sample counter notice. Also, this document (look for the download tab) reorganizes the legal language so that requirements are put in logical order and not randomly scattered throughout the US Code.
In all such offers that I have seen, there is an agreement explicitly saying that if the service is not cancelled by the end date of the trial, a recurring charge for the price of the service will be made, and the customer authorizes this. If there was such an agreement, the charges would be authorized, not fraudulent. The question does not say what agreement accompanied the free trial. But any reasonable person would know that credit card info is only provided when a charge is at least possible. Addition: The question now says: Reviewing an example of the vendor's website, it says in big print &quot;Monthly Plan $0.00/mo&quot; and in fine gray print it says &quot;Renews at $5.88/month.&quot; In that case it seems to me that the customer agreed to the recurring charge. What was purchased was access to the service, and whether the service was in fact used is not relevant. Unless there is a consumer protection law specifically requiring such terms to be &quot;prominent&quot; or otherwise making this deal unlawful, it seem to me that the customer has agreed, and the charge nis in no way a false claim. But it is possible that a court would rule otherwise. It is my experiences that in such cases the credit card company can and sometimes will act as an agent for the customer, and can often obtain refunds for multiple past charges. No doubt they have mush stronger negotiating power. But such refunds are not a matter of law, I think, rather of business practice and good will.
If they actually mean $0, then that is not "taking advantage". If they do not mean $0, it is most likely that they will tell you "Sorry, we made a mistake, we're not gonna send you that Rolex for $0 plus shipping". If this came with free shipping, then you would not actually have a contract, because there s no consideration on your part (no payola). Fortunately, there is shipping, so there is a contract. You could then attempt to force them to send you the goods, which they might do rather than irritate you, but not if it is a Rolex. One of the defenses against enforcing a contract is "mistake", and a $0 Rolex would be a great example of that. Things get a bit more tricky if you relied on their free Rolex. You would look up the doctrine of promissory estoppel, to see if the seller could be estopped from making the mistake argument. Let's say that you also bought a Rolex Display Case from someone else at a cost of $100 plus shipping. By relying on their promise to sent you a Rolex, you have suffered a loss. The most likely outcome is that they'd have to reimburse your Display Case expense. (Finding) mistake airfares is an industry: a common response for the airline is to say "Oops, sorry", though sometimes they honor the mistake fare. Rumor has it that rather than get trashed on Twitter, the airlines honor mistake fares. You may find disclaimer language pertaining to verification of prices and availability, which also gets them off the hook. At any rate, you certainly won't be sued or prosecuted for assuming that they mean it and buying the thing; you might be disappointed.
You are describing a liability suit. My sense is that based on the facts you describe you will face two serious challenges to making a successful case. Damages and liability. In order to win a liability case, you must first establish that you have been damaged in some way. According to your facts, your damages are at best, the replacement value of a used controller. I'm guessing that's what, $20 or so? That doesn't cover the cost of an attorney's time to even begin to hear your version of the facts, much less give you advice or pursue a case for you. After you establish damages, you must prove the company is responsible or has some share of liability for causing your damages. Again, I think this is going to be an obstacle for you. Not placing a warning that the game will affect you by causing you to throw your controller and be mean to your mom would be unprecedented if you were to prevail. AFAIK.
If you were to seek legal recourse for breach of contract (their Terms and Conditions), the best outcome you could hope for would be "making whole", and since they have already offered this a court could award you what the retailer already offered, but make legal costs on both sides the plaintiff's liability (ie. you), since you could have taken the offer and avoided court. The Terms and Conditions associated with the discount code mean that you won't be able to return the gift cards for cash. It will be argued that by using the code, you agreed to those terms and conditions. The second paragraph of their reply looks like an attempt to scare you, but it has legal merit. By using the unauthorised code you could be considered to have made false representation when you entered into the contract. This could render the contract void, and if they could demonstrate it had been done deliberately to gain money it could meet the threshold for fraud (which is what the police would possibly investigate : if it can be shown that you were aware the discount code didn't apply to you it would constitute making "a false representation ... to make a gain for himself" [sub-paragraphs 1-5, paragraph 2 of the Fraud Act 2006]). You may be able to argue that the voucher websites misled you (though it sounds like you, I and the retailer already know that's not true), but since the retailer has offered to repay what you paid there are unlikely to be any damages - and, unless the voucher site took commission from your transaction, a contract between you and the voucher sites would be difficult (possibly impossible) to establish. In the circumstances, returning what you originally paid is a good offer.
There is a good chance that you have some kind of remedy. But, in all likelihood, there is no cost effective remedy to vindicate your rights in a $400 dispute. If it was a $400,000 dispute, the federal courts would provide a good venue to resolve the dispute. In a $400 dispute, your best shot is probably to seek to have the credit card company reverse the charges, if you paid by credit card, or resort to consumer arbitration, if the contract of sale provided for it. I don't know if the remedies available for a credit card purchase in these circumstances are also available in the case of a debit card, but the agreement by the bank on that issue would be worth investigating.
You have a contract - they have fulfilled their obligation (they paid you), if you do not fulfil their obligation (not to post it online) then you are in breach of the contract. Your obligation continues even if you gift the money back to them. If you breach the contract then they can sue you for the damage that they suffer. Presumably this would be damage to their reputation and for a public figure this could run into millions of dollars. In demanding additional money from them beyond what you are legally entitled to you are, at least, flirting with the crime of extortion/blackmail. This would not be a matter for them to sue you for, it would be a matter for the DA to prosecute if they chose to make a complaint. There doesn't seem to be a defamation issue here because you are not stating anything that isn't true. Now, the extent of the agreement appears to prohibit you posting it on the internet, however, the spirit of the agreement is that you will keep the information secret in all respects - that is likely how a court would look at it. Of course, if someone does steal the information from you then you haven't broken the agreement but you would probably have to prove that it was stolen when they sue you.