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Complete Home & Office Legal Guide
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Complete Home and Office Legal Guide (Chestnut) (1993).ISO
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1993-06-29
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/* Here is the full text of mailorder sales regulations of
the Federal Trade Commission together with comments. */
PART 435-MAIL ORDER
MERCHANDISE
Sec.
435.1 The Rule.
435.2 Definitions.
435.1 The Rule
In connection with mail order sales in commerce, as "commerce" is
defined in the Federal Trade Commission Act, it constitutes an
unfair method of competition, and an unfair or deceptive act and
practice for a seller:
(a)(1) To solicit any order for the sale of merchandise to be
ordered by the buyer through the mails unless, at the time of the
solicitation, the seller has a reasonable basis to expect that he
will be able to ship any ordered merchandise to the buyer: (i)
Within that time clearly and conspicuously stated in any such
solicitation, or (ii) if no time is clearly and conspicuously
stated, within thirty (30) days after receipt of a properly
completed order from the buyer.
/* Paragraph a(1) provides the general rules that mailorder
sellers must either ship within thirty days or CONSPICUOUSLY
advise that the time period for an order is longer. */
(2) To provide any buyer with any revised shipping date, as
provided in paragraph (b) of this section, unless, at the time
any such revised shipping date is provided, the seller has a
reasonable basis for making such representation regarding a
definite revised shipping date.
(3) To inform any buyer that he is unable to make any
representation regarding the length of any delay unless (i) the
seller has a reasonable basis for so informing the buyer and
(ii) the seller informs the buyer of the reason or reasons for
the delay.
(4) In any action brought by the Federal Trade Commission,
alleging a violation of this part, the failure of a respondent-
seller to have records or other documentary proof establishing
his use of systems and procedures which assure the shipment of
merchandise in the ordinary course of business within any
applicable time set forth in this part will create a rebuttable
presumption that the seller lacked a reasonable basis for any
expectation of shipment within said applicable time.
(b)(1) Where a seller is unable to ship merchandise within the
applicable time set forth in paragraph (a) (1) of this section,
to fail to offer to the buyer, clearly and conspicuously and
without prior demand, an option either to consent to a delay in
shipping or to cancel his order and receive a prompt refund.
Said offer shall be made within a reasonable time after the
seller first becomes aware of his inability to ship within the
applicable time set forth in paragraph (a)(1) of this section,
but in no event later than said applicable time.
/* Here is the procedure which must be followed when an order is
not shipped within the allowed time frame. */
(i) Any offer to the buyer of such an option shall fully inform
the buyer regarding his right to cancel the order and to obtain a
prompt refund and shall provide a definite revised shipping date,
but where the seller lacks a reasonable basis for providing a
definite revised shipping date the notice shall inform the buyer
that the seller is unable to make any representation regarding
the length of the delay.
(ii) Where the seller has provided a definite revised shipping
date which is thirty (30) days or less later than the applicable
time set forth in paragraph (a)(1) of this section, the offer of
said option shall expressly inform the buyer that, unless the
seller receives, prior to shipment and prior to the expiration of
the definite revised shipping date, a response from the buyer
rejecting the delay and canceling the order, the buyer will be
deemed to have consented to a delayed shipment on or before the
definite revised shipping date.
(iii) Where the seller has provided a definite revised shipping
date which is more than thirty (30) days later than the
applicable time set forth in paragraph (a)(1) of this section or
where the seller is unable to provide a definite revised shipping
date and therefore informs the buyer that he is unable to make
any representation regarding the length of the delay, the offer
of said option shall also expressly inform the buyer that his
order will automatically be deemed to have been canceled unless
(A) the seller has shipped the merchandise within thirty (30)
days of the applicable time set forth in paragraph (a)(1) of
this section, and has received no cancellation prior to
shipment, or (B) the seller has received from the buyer within
thirty (30) days of said applicable time, a response specifically
consenting to said shipping delay. Where the seller informs
the buyer that he is unable to make any representation
regarding the length of the delay, the buyer shall be
expressly informed that, should he consent to an indefinite
delay, he will have a continuing right to cancel his order at
any time after the applicable time set forth in paragraph
(a)(1) of this section by so notifying the seller prior to
actual shipment.
/* If a second delay to ship occurs you must receive an immediate
refund or expressly agree to a refund. */
(iv) Nothing in this paragraph shall prohibit a seller who
furnishes a definite revised shipping date pursuant to
paragraph (b)(1)(i) of this section, from requesting,
simultaneously with or at any time subsequent to the offer of
an option pursuant to paragraph (b)(1) of this section, the
buyer's express consent to a further unanticipated delay beyond
the definite revised shipping date in the form of a response
from the buyer specifically consenting to said further delay.
Provided, however, that where the seller solicits consent to an
unanticipated indefinite delay the solicitation shall expressly
inform the buyer that, should he so consent to an indefinite
delay, he shall have a continuing right to cancel his order at
any time after the definite revised shipping date by so
notifying the seller prior to actual shipment.
(2) Where a seller is unable to ship merchandise on or before the
definite revised shipping date provided under paragraph (b)(1)(i)
of this section and consented to by the buyer pursuant to
paragraph (b)(1)(ii) or (iii) of this section, to fail to offer
to the buyer, clearly and conspicuously and without prior demand,
a renewed option either to consent to a further delay or to
cancel the order and to receive a prompt refund. Said offer
shall be made within a reasonable time after the seller
first becomes aware of his inability to ship before the said
definite revised date, but in no event later than the
expiration of the definite revised shipping date:
Provided, however, That where the seller previously has obtained
the buyer's express consent to an unanticipated delay until a
specific date beyond the definite revised shipping date, pursuant
to paragraph (b)(1)(iv) of this section or to a further delay
until a specific date beyond the definite revised shipping date
pursuant to paragraph (b)(2) of this section, that date to which
the buyer has expressly consented shall supersede the definite
revised shipping date for purposes of paragraph (b)(2) of this
section.
(i) Any offer to the buyer of said renewed option shall provide
the buyer with a new definite revised shipping date, but where
the seller lacks a reasonable basis for providing a new definite
revised shipping date, the notice shall inform the buyer that the
seller is unable to make any representation regarding the length
of the further delay.
(ii) The offer of a renewed option shall expressly inform the
buyer that, unless the seller receives, prior to the expiration
of the old definite revised shipping date or any date superseding
the old definite revised shipping date, notification from the