This is a situation in which I find myself but I am not looking for legal advice. The amount of money involved is less than $25 so I don’t honestly mind whatever the answer is as far as my situation. You’re not my lawyer, I’m not your client, etc.
OK so here’s the sitch. I ordered a book online direct from the author (vanity publication) through his website. I got my receipt email and the author emailed confirmation of payment and the date he would mail the book. Ten days later I had not received the book and I emailed the author to inquire. After another ten days with no response I initiated a chargeback through my credit card, which was completed. About a week later the author emailed me, noting the chargeback and asking for an explanation. I emailed stating that I did it because I had not received the book and had received no reply to my inquiry. Two days later the author emailed again, stating that he was mailing the book the next day. He has not to date attempted to charge my credit card again. So the question is, if I do get the book am I legally obligated to pay for it? My feeling is that any sales contract was terminated when I withdrew my consideration based on not receiving the book and that if he sends the book anyway he can’t charge me for it per the law prohibiting merchants from charging for unsolicited merchandise.
Whatever the answer from a legal standpoint if I do get the book I’ll pay for it, so this is largely an academic exercise.
IA very much NAL, but I’m going to offer a guess, until some of the actual Dopers-at-Law come along and give us the SD on this:
Yes, you would be obligated to pay in your specific situation, but not in general. Here’s why I think that:
A contract is created by offer, acceptance, meeting of minds, and consideration. It is completed by fulfillment of its terms. The author offered to sell you a book for $X, you accepted, and sent consideration ($X). He had not yet fulfilled the contract, so you were entitled to cancel it, and presumably receive a refund of your money.
However, you did not notify him of the cancellation, but instead initiated a chargeback through your credit card company. Insofar as he knew (before receiving notification of the chargeback), the contract was still in force. That you took action with a third party to terminate the consideration was not communicated to him. Therefore there was no meeting of minds on the cancellation.
Had you notified him directly that you were cancelling the order and initiating a chargeback, you would not be obligated to pay, as you had cancelled the contract for non-fulfillment of its terms. (I.e., his sending you the book for the money.)
I may be completely off base on this, but that’s how I’d read it if someone tossed it to me for arbitration.
What do you make of the email exchange in which I state that I took the money back as a result of his not fulfilling his side of the contract and not communicating with me about it? While I did not use the words “I am cancelling the contract” or similar I did take the money back and explain why. That exchange took place before his stating he was now sending the book.
I dunno, Poly, the author asked for an explanation of the chargeback, and was told why it was done. Unless the author specifcally made note of the idea that he was sending a book and expecting payment upon arrival, I’d say Otto got a free book.
Were I Otto, I’d e-mail the author and clarify the situation, telling him you would refuse deliery if he would prefer to have his book back, but that you cancelled the contract when the author appeared to have no intention of continuing communication with you.
You ordered a book, you card was charged, the book was not sent out and you did a chargeback and got your money back. As far as I’m concerned, the whole order is done with. Besides, since the chargeback went through he either ok’d it, or he disputed it and the CC company decided you should get the money back.
Him sending out the book now is a new transaction (unsolicited) AFAIC
If he charges your card again, I (personally) would let it go, but you could certainly raise a stink about it if you wanted to. You’d probably win as well, you could tell them you ordered and received the book from somewhere else already.