1. Delivery of unsolicited goods and its consequences in European private law
a) Delivery of unsolicited goods before and after the formation of a contract
If a person receives goods that he has not ordered, two basic questions arise: the first is whether and under what circumstances the recipient of the goods is obliged to pay for them even though he did not order them. Secondly, if there is no duty to pay, it must be asked whether there is at least a duty to handle the goods with care and to give them back to the supplier. The answers are largely dependent on the reasons that led to the delivery. The supplier may have delivered the goods in order to fulfil a contractual duty (eg to deliver some other goods). In that case, the delivery of goods different from those due under the contract is either the result of a mistake or a deliberate attempt to discharge the contractual obligation without (fully) complying with the contract’s terms. In both cases, the delivery of unsolicited goods is an attempt (though a flawed one) to perform an existing contractual agreement. In other cases the delivery of unsolicited goods constitutes an attempt to procure the conclusion of a contract: the supplier sends goods to a recipient in order to induce him to buy the goods and pay for them.
Modern European legislation generally aims at preventing suppliers from using the delivery of unsolicited goods as a means to procure the conclusion of a contract. The various statutory provisions tend to make the supplier’s position as uncomfortable as possible. Consequently, this entry will focus on the fight against the delivery of unsolicited goods as a marketing tool (or, in the words of the European Distance Contracts Directive (Dir 97/7), a ‘promotional technique’). We will only deal with the delivery of unsolicited goods in the course of the performance of an existing contract as far as this phenomenon is within the scope of the various provisions primarily aimed at preventing the abusive marketing strategy just explained, particularly the rules enacted by Member States to implement Art 9 of the Distance Contracts Directive. The delivery of goods not conforming to the recipient’s order is a problem to be treated more extensively within the context of the seller’s liability for defects in goods delivered under a contract of sale.
b) Early history
Delivery of unsolicited goods as a marketing tool was discussed among the learned jurists on the European continent as far back as the early 19th century. In Germany the opinion seems to have prevailed among legal scholars for some time that the recipient of unsolicited goods was bound to pay for them if he failed to send them back. At around the same time, some German states enacted statutes designed to put an end to the practice of marketing lottery tickets by sending them to unwitting customers who had never ordered them. According to these statutes, when the recipient had been completely passive there would be no valid contract.
Of course, the tendency among German lawyers and legal scholars to find a binding contract in cases where one party had failed to react in any way to the delivery of unsolicited goods encouraged the use of this marketing technique. The opinion of the jurists was based on the maxim ‘qui tacet consentire videtur’, derived from canon law. It was only from the middle of the 19th century onwards that a stricter approach prevailed. At this point, it was accepted by legal scholars that a contract would only be concluded (contract (formation)) when the recipient started to use the goods, processed them, or made his intention to keep the goods known to the outside world (though not necessarily to the supplier) in any other way. The German courts also arrived at the conclusion that passive behaviour on the part of the recipient was an insufficient basis for the conclusion of a contract. However, if the supplier and the recipient were professional merchants, the courts were still ready to accept that a contract had been formed (see eg Oberappellationsgericht Dresden 18 October 1859, Seuffert’s Archiv 13, 509 f.). The French courts stated on several occasions in the 1870s that the recipient of unsolicited goods did not enter into a binding contract by silently accepting the goods. The maxim ‘qui tacet consentire videtur’ lost ground in Europe, and the contracting parties’ right to self-determination became more important (freedom of contract). The English courts reached similar conclusions in the second half of the 19th century. In Felthouse v Bindley  EWHC CP J35, 142 English Reports 1037, the Court of Common Pleas held that silence does not constitute a valid acceptance of an offer. Although the decision was not based on a case of delivery of unsolicited goods, it nonetheless brought English law in line with the trends prevailing on the Continent.
With these court decisions, the rule that no contract of sale would be concluded in cases in which the recipient of unsolicited goods remained passive became prevalent throughout Europe. The question of what—if any—duties of care vis-à-vis the goods were incumbent on the recipient remained open. It was still possible to assume that a contract would be concluded as soon as the recipient started using the goods or that the recipient would be liable for damages in the case of destruction of the goods.
c) Further development since the middle of the 20th century
In the late 19th century, the English courts, unlike those in Germany and France, were not called upon to decide cases involving the delivery of unsolicited goods. In the second half of the 20th century, however, the practice of sending unsolicited goods seems to have become particularly widespread in England. In 1971 the English parliament, following the model of legislation in several states of the United States, enacted a statute to suppress this practice, which was now termed ‘inertia selling’. Some European countries followed suit in the following decades. In 1997, Art 9 of the Distance Contracts Directive made it obligatory for all Member States to prohibit the delivery to a consumer of unsolicited goods combined with a demand for payment. Article 9 also required Member States to ensure that the consumer was not required to give any consideration in exchange for the unsolicited goods and that his silence could not be regarded as an acceptance of the offer implicit in the delivery. The directive forced all countries which had not previously taken particular legislative measures against inertia selling to do so. It also induced changes in existing legislation, including in England. Directive 2005/29/EC on unfair commercial practices and the national laws enacted to implement this directive constitute the latest step in the continuing fight against inertia selling.
2. Trends of legal development
The statutes against inertia selling, which now exist everywhere in Europe, are unanimous in stating that the recipient’s silence must never be construed as an acceptance of the supplier’s offer. In addition to this basic rule, the statutes exclude any contractual or statutory duties on the part of the recipient to keep the goods, handle them with care, or restore them to the supplier. In their strict denial of any rights to the supplier, the recent statutes thus go beyond what was achieved by the repudiation of the rule ‘qui tacet consentire videtur’ at the end of the 19th century and—in some cases—beyond what is required by the Distance Contracts Directive.
The delivery of unsolicited goods is universally regarded as a practice that is contrary to fair competition. Provisions to that effect supplement the regulations concerning the relationship between the supplier and the recipient. The consequences in competition law vary between the different legal systems. They include injunctions at the motion of competitors or consumer associations, administrative measures against the offending business entity, and the imposition of criminal penalties on those personally responsible (unfair competition (consequences)). Some countries have even enacted special criminal statutes which make it an offence to deliver unsolicited goods in order to procure the conclusion of a contract.
The laws specifically designed to fight the use of the delivery of unsolicited goods as a marketing tool are only applicable between a consumer and a professional acting in the course of his trade, business or profession (consumers and consumer protection law). Thus, the rules are less severe when unsolicited goods are delivered by one consumer to another or by one professional to another. However, even where no special provisions of consumer protection law apply, the passivity of the recipient alone cannot lead to the formation of a binding contract. This follows from the universal rejection of the rule ‘qui tacet consentire videtur’ since the late 19th century. In line with this universal principle, sets of rules for international trade between professionals such as the CISG (Art 18(1)2) and the UNIDROIT PICC (Art 2.1.6(2)2) state that mere silence or passivity of one party may not qualify as the acceptance of a contractual offer.
a) No contract
Similar to the provisions of the CISG (sale of goods, international (uniform law)) and the UNIDROIT Principles of International Commercial Contracts (PICC), the Distance Contracts Directive Art 9(2) states that ‘absence of a response’ on the part of the recipient of unsolicited goods does not constitute an expression of consent. Many national rules go further and exclude any duty to pay for the goods received, even when the recipient uses the goods as his property, sells them to a third person, processes them, or simply destroys them. Until the end of the 20th century, the prevailing approach in most European legal systems had been to regard the contract as validly concluded in such cases and force the recipient to pay the price, even if the supplier of the goods was not aware of the recipient’s acts. The current rules use different strategies to ensure that no court and no legal scholar finds a valid contract in such cases. Austrian law, for example, explicitly states that the fact that the recipient starts using the goods received, or performs similar acts with respect to the goods, must not be construed as a valid acceptance. Switzerland seeks to cut off the potential formation of a contract even earlier: under Swiss law, the delivery of unsolicited goods may not be construed as a valid offer. Germany has no clear statutory rule and therefore the issue as to which acts of the recipient may still lead to the conclusion of a contract is subject to discussion among legal writers. The prevailing opinion, however, takes the view that no contract is formed just because the recipient starts using the goods or because of similar acts.
The provision of Art II.-3:401(1)(a) DCFR is in line with a general tendency to deny the existence of a contract even in cases in which the recipient did not remain entirely passive. According to Art II.-3:401(1)(a) DCFR, no ‘action or inaction by a consumer’, in relation to unsolicited goods delivered to the consumer, can bring about a valid contract. However, the rule in the DCFR is probably not meant to exclude the possibility that under particular circumstances a contract might arise. If the recipient actually pays for the unsolicited goods, this will constitute an implied acceptance of the supplier’s offer notwithstanding the existing statutory provisions against inertia selling in most systems. The same is true when the recipient explicitly declares his intention to conclude a contract with the supplier. Article II.-3:401(1)(a) DCFR should not be construed so as to exclude the recognition of a contract in such cases.
b) Exclusion of extra-contractual claims
The provisions which make it impossible to construe the recipient’s passivity or even the fact that he starts using the goods as an acceptance giving rise to a valid contract of sale make it equally impossible to find a contract of deposit or a similar contractual relationship between the supplier and the recipient, under which a duty on the part of the recipient to handle the goods received with care might arise. Moreover, most legal systems also exclude claims in tort against the recipient as well as claims for unjustified enrichment arising from the recipient’s handling of the goods.
Finally, claims for the return of the goods themselves, whether based on the supplier’s right of ownership or on any other legal ground, are excluded in most European legal systems (either by explicit statutory provisions or according to the prevailing interpretation of the law). Again, the conceptual vehicles used in different systems to achieve the desired end (protection of the recipient against claims to return the goods to the supplier) vary. Some rules provide that there cannot be a claim for the return of the goods, others (like the English statute) require that the goods be regarded in law as a gift to the recipient, or state that the recipient may keep them without having to pay (this is the Dutch approach). If the statute limits itself to stating that no claims may be brought (as in German law), the question remains whether the recipient becomes the owner of the goods or whether (and how) he can acquire ownership. If the recipient cannot acquire ownership (and the supplier has no legal possibility of regaining control of the goods), there will be a permanent disjunction between possession and ownership. The supplier’s ownership would be a dominium sine re. Article II.-3:401(1)(b) DCFR excludes all extra-contractual claims but makes no statement regarding the consequences of this exclusion of remedies for the supplier’s right of ownership. Whatever the legal construction, the exclusion of all claims for the return of the goods amounts to a factual expropriation of the supplier and is therefore not uncontroversial. The harsh criticism of the implementation of the Distance Contracts Directive in Germany was to a considerable extent caused by this de facto expropriation of the supplier.
The Distance Contracts Directive does not contain a provision dealing with cases of error: most national implementations provide that extra-contractual claims for the return of goods or for monetary compensation are not excluded if the unsolicited goods were delivered because of an error on the part of the supplier. Article II.-3:401(2)(b) DCFR also provides for an exception in such cases. Such exceptions from the strict rules designed to burden the supplier are warranted if the supplier erroneously assumes that the recipient had ordered the goods, or if goods that have actually been ordered are delivered to the wrong person. Depending on the way the exception is framed, provisions of this type may also be applicable when a buyer who actually ordered goods receives deficient goods or goods of a different description than those ordered. If the exceptions cover such cases, they delimit the respective areas of application of the regime governing the delivery of unsolicited goods and the rules regarding the seller’s responsibility for defects of the delivered goods (sale).
d) Further sanctions
Even before the European Union started its crusade against inertia selling, it was commonly accepted in all Member States that the delivery of unsolicited goods constituted a practice that is contrary to fair competition. Now Annex I of the Directive on unfair commercial practices compels all Member States to treat the delivery of unsolicited goods as an unfair commercial practice. While national legislatures are free to introduce further sanctions, the directive forces them to provide at least a possibility for competitors to obtain injunctive relief against a person or corporation who uses inertia selling as a marketing tool.
In England and France, the delivery of unsolicited goods constitutes an infraction for which a fine can be imposed. In Germany, inertia selling is not defined as a criminal or regulatory offence.
e) Unsolicited services
Traditionally, the interest of lawyers and lawmakers regarding inertia selling was focused on the delivery of unsolicited goods. The provision on unsolicited services featured less prominently in legislation and legal literature. However, it was specifically addressed by the English statute from 1971. Article 9 of the Distance Contracts Directive subjects the provision of unsolicited services to the same regime as the delivery of unsolicited goods. Accordingly, Member States have introduced national rules against inertia selling applicable to the unsolicited provision of services as well.
4. Inertia selling in international codes and restatements of the law
The most important provisions regarding inertia selling in international codifications have already been mentioned: Art 18(1)2 CISG and Art 220.127.116.11 (2)2 PICC contain a refutation of the old rule ‘qui tacet consentire videtur’. Article 2:202(2) PECL contains a similar statement. Article 16(3) of the draft produced by the Académie des Privatistes Européens (Code européen des contrats (Avant-Projet)) treats the question in which cases silence may be construed as the acceptance of a contractual offer in great detail. Generally, silence does not constitute a binding acceptance, according to Art 16(3) lit. a) and b), however, previous dealings of the party or common usage may lead to another result. Silence may also be construed as the acceptance of an offer if the proposed contract creates duties only for the offeror. There is no special provision for the delivery of unsolicited goods.
The provisions mentioned so far only reflect the legal situation that had already been achieved by the end of the 19th century when agreement had been reached in most European countries that ‘qui tacet consentire videtur’ was not a suitable basis for dealing with the phenomenon of inertia selling. Only Art II.-3:401 DCFR reflects the development which has taken place since the 1970s and the changes introduced by the Distance Contracts Directive and the Unfair Commercial Practices Directive.
Roger Nerson, ‘Le Silence (Étude du Droit français)’ in Eranion Maridakis, vol II (1963) 399; Rudolf B Schlesinger (ed), Formation of Contracts, vol II (1968) 1071 ff; Christoph Krampe, ‘Qui tacet, consentire videtur’ in Festschrift Paul Mikat (1989) 367; Parviz Owsia, ‘Silence: Efficacy in Contract Formation. A Comparative Review of French and English Law’ (1991) 40 ICLQ 784; Arthur T von Mehren, ‘The Formation of Contracts’ in IECL VII/1 (1991) ch 9; Werner Flume, ‘Vom Beruf unserer Zeit für Gesetzgebung’ (2000) ZIP 1427; Kerstin Geist, Die Rechtslage bei Zusendung unbestellter Waren nach Umsetzung der Fernabsatzrichtlinie (2002); Adrian Müller-Helle, Die Zusendung unbestellter Ware (2005); Franz Dorn, ‘§ 241a. Unbestellte Leistungen’ in Mathias Schmoeckel, Joachim Rückert and Reinhard Zimmermann (eds), Historisch-kritischer Kommentar zum BGB, vol II/1 (2007); Daniel Walter, Die rechtliche Behandlung der Erbringung unbestellter Leistungen nach § 241a BGB (2010).