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Legal Services

By Daniel J. Schulte
MDA Legal Counsel
Published in the December 2005 issue of the Journal

Question: A few months ago I received in the mail a free sample of latex gloves. I have never done business with the suppliersent them. The letter that accompanied the gloves stated that the gloves were free and intended for me to try out. The letter also stated that if I did not like the gloves I should send them back, and if the supplier did not receive them back within 30 days, they would send a "standard" order to me.

I had no desire to try new gloves and disregarded this mailing. Last week I received two cases of these gloves with an invoice totaling $500. I never ordered and do not want these gloves! Do I have to ship them back to the supplier? The cost to do so would be $25. This is a waste of my time and I would prefer to just throw the box away.

Answer: Unless you have in the past accepted and paid for gloves from this supplier, you may discard the gloves without becoming obligated to pay the invoice.

Given the frequency of questions like this, it appears that more dental supply companies have been engaging in the type of "no response means send me more" marketing tactic described in this question. This tactic often just results in unwanted supplies arriving in your office and invoices from suppliers that need to be dealt with.

There are both Michigan and federal laws that apply to this situation. Michigan law (MCL § 445.131) states that the receipt of unsolicited goods (such as these gloves) is deemed to be an unconditional gift by the supplier to you, and that you: (1) may refuse to accept delivery; (2) are not required to return the gloves to the sender; and (3) may use or dispose of the gloves in any manner without incurring an obligation to pay the invoice.

Under federal law (39 USC § 3009), the mailing of unordered merchandise is deemed to be an unfair method of competition and an unfair trade practice (except for free samples that are clearly and conspicuously marked as such). This federal law, just like the Michigan law, states that any such unsolicited merchandise may be treated by you as a gift, and that you have the right to "retain, use, discard, or dispose of it in any manner" you see fit without incurring any obligation to pay for the merchandise.

There is an exception to your right to dispose of these gloves without incurring an obligation to pay the invoice. This exception will apply if you on previous occasions accepted and paid for gloves from this same supplier. If you have established such a course of dealing with this supplier, then §2208 of Michigan’s Uniform Commercial Code would come into play.

This portion of the code allows the supplier of the gloves to use the fact that you had on previous occasion(s) received and paid for gloves (when you had an opportunity to reject the shipment and/or object to paying an invoice or invoices) as evidence that an agreement exists between you and the supplier for the purchase of the gloves. If the supplier is successful in establishing such an agreement you will incur obligations with respect to the handling and storage of the gloves, and potentially will be obligated to pay the supplier’s invoice.

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