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Legal VIEW

The Postman May Come Bearing 'Gifts'

February 20, 1986|JEFFREY S. KLEIN

Sandy Craft, a Pasadena woman, received an unexpected present in the mail recently, a beautifully bound executive 1986 appointment diary.

Along with the daily calendar came an invoice from a New York company for $24.92, including shipping and handling.

There was only one hitch. Sandy had never ordered the merchandise and did not want to pay for it.

Sandy wants to know what to do. Is she legally obligated to pay the bill if she keeps the appointment book? Can she throw the book away and forget about it? What should she do if the invoices keep coming?

No Obligation

Happy birthday, Sandy. According to California law, unsolicited merchandise sent through the mail is deemed an "unconditional gift," which you can use or dispose of in any manner without any obligation to the person who sent the merchandise.

In fact, the state law, Section 1584.5 of the California Civil Code, was amended last year to apply to unsolicited services as well. So, whether it's goods or services, if you didn't order them orally or in writing, then you don't have to pay for them.

The law does not apply to standing-order arrangements or other series plans in which the buyer has consented in advance to receive merchandise on a periodic basis. There are also special rules applicable to book-of-the-month clubs and other similar organizations.

If you have any specific questions, you should check the law itself.

Although the law may say it's a gift, who is going to tell the company that keeps sending those unwelcome bills? Other states may not have the same exact law, so it's a good idea to inform the company of the California law and explain that you intend to keep the "gift" but want the invoices to stop. Mention the specific section of the Civil Code in your letter.

The law also provides that you have a right to sue to enjoin the company from continuing to send bill statements and can collect attorney's fees and costs if you win. (But don't file such a suit frivolously: Whenever you can collect such fees if you win, the other side can usually collect the same fees if you lose.)

Write the company to explain that you want the bills to stop, and stress that you can sue for an injunction and legal fees if the bills keep coming. You might also note in your letter that it is a violation of a federal mail-fraud statute to send bills for money that is not owed, and promise to ask the U.S. postmaster general to determine whether the conduct in your case is illegal. (The federal law is found in Section 1341 of Volume 18 of the United States Code.)

You might point out that the Federal Trade Commission also takes the position that unordered merchandise can be considered a gift. For a free pamphlet, "Facts for Consumers: Unordered Merchandise," write FTC, Room B-3, Sixth Street and Pennsylvania Avenue, N.W., Washington D.C. 20580.

Once that's all done, sit back, relax and enjoy your new appointment book.

Legal Brief

Already sick of fastening your seat belt? Do you think the state is going too far when it forces you to buckle up?

An Illinois man challenged a state law that required drivers and front-seat passengers to fasten their seat belts. Judge Richard H. Brummer decided that the law violated the Illinois Constitution. He relied on an Illinois Supreme Court case in which a motorcycle-helmet law was held unconstitutional because the state could not "justify the regulation of what is essentially a matter of personal safety."

"How the wearing of a seat safety belt would protect other members of the public is obscure at best," Brummer said.

Because the case involved the Illinois Constitution, it is not a binding precedent in California. So even if a Californian tries a similar challenge, the California courts may uphold the law.

Of course, you can always move to Illinois.

Attorney Jeffrey S. Klein, The Times' senior staff counsel, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.

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