The Common Law

Unsolicited items in the mail – do I have to return it?

What happens if I get an item by mistake from a company and it looks like they meant to send it to one of their customers? Do I have to return it?

The FTC recommends that you mail the sender a letter (using certified mail and keeping a copy) indicating the mistake, give the sender a reasonable amount of time to respond (to have it mailed back at no expense to you or to come pick it up), and inform the sender that you reserve the right to keep the merchandise if they fail to respond in that time period.

The FTC's recommendations are useful; failing to notify the sender or the intended customer could make you liable for criminal or civil theft. Criminal theft can cost you fines and/or jail time, depending on the value of the property. If the property is worth less than $1,500, it is a misdemeanor (possible $4,000 fine and/or up to one year in jail). If the property is worth more than $1,500, it constitutes a felony (possible $10,000 fine and up to a life-sentence in state prison).

In addition, either the company who sent you the goods by mistake or the intended customer can sue you for civil theft (or "conversion"). You could be responsible to return the goods or pay damages.

Can you still be liable a year later? Most offenses have what is called a "statute of limitations." These statutes limit the time period in which you can be brought into court. For criminal misdemeanors, the state of Texas must charge you within two years of your commission of the offense. For felony theft, Texas must charge you within five years. You must be sued in civil court for "conversion" within two years. In other words, once these various time periods pass, you have no criminal or civil liability and can keep whatever you got in the mail.

Of course, it is risky to keep the goods and wait for the statute of limitations to run out. The safest action is to follow the FTC's advice and contact the sender directly by certified mail.

Please submit column suggestions, questions, and comments to thecommonlaw@austinchronicle.com. Submission of potential topics does not create an attorney-client relationship, and any information submitted is subject to being included in future columns.

Marrs, Ellis & Hodge LLP, www.jmehlaw.com.

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.

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