Inertia selling - unsolicited benefits sent to the consumer
In consumer trade throughout the EU, practices involving the provision of unsolicited goods or services with a demand for payment, return or storage of items (inertia selling) are prohibited. The policy of protection of the weaker party to the transaction is related to the low legal awareness of consumers, who, being in an abnormal incentive situation related to the obligation to pay, often succumb to pressure from the trader. This pressure is based on creating the impression that the contract has been concluded and the consumer should pay, which the trader manifests, e.g. by sending out pre-trial payment requests.
In order to take a closer look at the subject of unsolicited services, one should cite the provisions regulating this matter.
Article 5 of the Act on consumer rights:
1. Fulfillment of the service not ordered by the consumer, referred to in art. 9 point 6 of the Act of 23 August 2007 on counteracting unfair market practices, is at the entrepreneur's risk and does not impose any obligations on the consumer.
2. The consumer's failure to respond to an unsolicited service shall not constitute consent to the conclusion of the contract.
Art. 9 of the Act on Counteracting Unfair Market Practices:
Unfair market practices under all circumstances are the following aggressive market practices:
6) requesting immediate or deferred payment for products or return or storage of products that have been delivered by the entrepreneur but have not been ordered by the consumer;
What is an unsolicited service?
We can talk about a typical unsolicited service in a situation where the entrepreneur uses the technique of selling goods or services, consisting in sending a product to the consumer without his consent or an order placed earlier. Such goods are usually accompanied by information that if the consumer does not resign from concluding the contract or does not immediately return the goods, he will be obliged to pay the price and in a very short time. Sometimes entrepreneurs intentionally include invoices or similar bills in promotional materials, which suggest that the consumer is obliged to pay.
An undesirable behavior on the part of the entrepreneur will be a request:
payments including delivery of unsolicited goods,
returning items at the consumer's expense,
the consumer incurs any handling fees related to the return of the goods,
raising fees for the storage of goods by the trader, allegedly ordered by the consumer, and not sent by the trader.
Consequences of delivery of an unsolicited service
The above-described practices of entrepreneurs may face a number of consequences of a civil law nature, as well as administrative and criminal sanctions.
In the light of the above-mentioned regulation, an entrepreneur who sends an unsolicited product / service to a consumer will have to take into account the fact that it will be him, and not the consumer, that will be charged with the negative consequences of such proceedings. Sending an unsolicited item to the consumer does not impose any obligations on the consumer, for example taking care of the item, he is not obliged to protect it against loss or damage. The entrepreneur cannot demand payment for an unsolicited product or compensation for the use of things. He will also bear the risk of any damage to the product upon return. Any provisions of the regulations that provide for the tacit consent of the consumer to be bound by the contract in the event of failure to return the product within the period specified unilaterally by the entrepreneur should be considered prohibited. If the consumer under pressure pays the price for a good or service, and realizes that he has paid for the unsolicited product, he will be able to demand its return. If the consumer incurs any costs related to the storage of the item or its return to the seller, he will be able to demand reimbursement of the costs incurred by the entrepreneur.
The legislator did not regulate the transfer of ownership of an unsolicited product. It was not decided to introduce such a categorical sanction for sending unsolicited goods, which is the transfer of ownership to the consumer, which allows to claim that the owner of the goods will still be the entrepreneur.
The use of prohibited selling methods may be considered as an unfair market practice, which is primarily related to the payment of certain financial penalties. The entrepreneur may be fined by the President of UOKiK amounting to 10% of the turnover achieved in the year preceding the year of its imposition. The use of unfair practices consisting in sending unsolicited goods to the consumer may be considered an offense under the Act on Counteracting Unfair Market Practices, punishable by a fine of up to PLN 5,000.
When an unsolicited service is sent in error
It is necessary to distinguish the situation of deliberate sending by the entrepreneur of an unsolicited service from the erroneous shipment of a specific product, e.g. in a situation where the entrepreneur sends the same product to the customer for the second time, under the erroneous belief that he is doing it for the first time. He may then request the return of the product on the basis of the provisions of the Civil Code on unjust enrichment. However, the cost of return shipment should be covered by the entrepreneur.
The replacement benefit will be treated as inertia selling
In the previous legal state, prior to the entry into force of the Act on Consumer Rights, the provisions of the Act on Counteracting Unfair Market Practices did not recognize the so-called replacement benefits. When the entrepreneur was not able to perform the service with the properties ordered by the consumer, as a result of even temporary obstacles, he had the opportunity to discharge himself from the obligation by performing a substitute service corresponding to the same quality and purpose and for the same price or remuneration, at the same time informing the consumer in writing about his right not to accept this benefit and withdraw from the contract, with the return of the goods at the expense of the entrepreneur. The new regulations treat the replacement service as an unsolicited service, which has the consequences described above.
Summary - inertia selling
As can be seen from the above analysis, the Act on consumer rights extended the civil law effects related to inertia selling to the detriment of the entrepreneur. The consumer is not obliged to pay for the delivered goods or service that he has not ordered and cannot bear any negative consequences for this. The entire risk related to the fulfillment of the unsolicited service rests with the entrepreneur.