| 1) |
For the purpose of this Act, goods or services are unsolicited in any of the following circumstances, subject to subsection (2): |
| a) |
If, during any direct marketing of goods or services, a supplier or person acting on behalf of a supplier has left any goods with, or performed any service for, a consumer without requiring or arranging payment for them, those goods or services, as the case may be, are unsolicited; |
| b) |
if a consumer is a party to an agreement contemplating the periodic delivery of goods during the life of the agreement, and — |
| i) |
during the course of that agreement, the supplier introduces goods or services that are materially different from the goods or services previously supplied to an extent not reasonably contemplated in the agreement, the new goods or services are unsolicited, unless the consumer expressly consented to the material change; or |
| ii) |
after the termination of that agreement, the supplier delivers any further goods to the consumer, other than in terms of a different agreement or transaction, those further goods are unsolicited goods; |
| c) |
if a supplier delivers goods or performs services at a location, date or time other than as agreed, and the consumer has rejected that delivery or performance of services, as contemplated in section 19(6), those goods or services are unsolicited; |
| d) |
if a supplier delivers a larger quantity of goods than the consumer agreed to buy, the excess goods are unsolicited unless the consumer has rejected the entire delivery, as contemplated in section 19(7)(a); or |
| e) |
if any goods have been delivered to, or any services performed for, a consumer by or on behalf of a supplier without the consumer having expressly or implicitly requested that delivery or performance, the goods or services, as the case may be, are unsolicited goods. |
| 2) |
Despite subsection (1), if— |
| a) |
within 10 business days after delivery of any goods to a consumer, the supplier informs the consumer that the goods were delivered in error, those goods become unsolicited only if the supplier fails to recover them within 20 business days after so informing the consumer; or |
| b) |
any goods are delivered to a consumer and— |
| i) |
those goods are clearly addressed to another person, and have obviously been misdelivered; or |
| ii) |
having regard to the circumstances of the delivery, if would be apparent to the ordinary alert consumer that the goods were intended to be delivered to another person, |
the goods become unsolicited goods only if the recipient informs the apparent supplier or the deliverer that the goods were misdelivered, and the goods are not recovered within the following 20 business days.
| 3) |
If a person is in possession of goods contemplated in this section, the person— |
| a) |
must not frustrate or impede any reasonable action by the supplier or deliverer to recover the goods within the time allowed in subsection (2); |
| b) |
is not responsible for any cost pertaining to the recovery of the goods or further delivery of them to another person; and |
| c) |
is not liable for any loss or damage to the goods during the time they are in the person’s possession or control, other than loss caused by the person’s intentional interference with the goods, if any. |
| 4) |
A person who fails to comply with subsection (3)(a) is liable to the supplier or deliverer, as the case may be, for any additional costs for recovery of, or damage to, the goods arising as a result of anything done to frustrate or impede the lawful recovery of those goods. |
| 5) |
If a person is in possession of any unsolicited goods, the person may— |
| b) |
return the goods to the apparent supplier or deliverer at the risk and expense of the supplier or deliverer, as the case may be. |
| 6) |
If a person lawfully retains any unsolicited goods— |
| a) |
the property in those goods passes unconditionally to the person, subject only to any right or valid claim that an uninvolved third party may have with respect to those goods; and |
| b) |
the person who supplied or delivered those goods is liable to any other person in respect of any right or valid claim relating to such goods. |
| 7) |
A person has no obligation to pay a supplier for unsolicited goods or services, or a deliverer for the cost of delivery of any unsolicited goods. |
| 8) |
A supplier must not demand or assert any right to, or attempt to collect, any payment from a consumer in respect of any charge relating to unsolicited goods left in the possession of a consumer, or the delivery of any such goods, or unsolicited services supplied to or for the benefit of, a consumer, except as contemplated in subsection (4). |
| 9) |
If a consumer has made any payment to a supplier or deliverer in respect of any charge relating to unsolicited goods or services, or the delivery of any such goods, the consumer is entitled to recover that amount, with interest from the date on which it was paid to the supplier, in accordance with the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975). |
Intellectual Property Rights from Publicly Financed Research and
