Our company sold 4 large machines to a Swiss client value circa CHF 15,000. The machines were despatched from a very large 3rd party warehouse we use. By mistake the warehouse put 5 machines in the delivery truck, the 5th being a very large machine weighing over 200kg and value 7,000.
The client took the machine and neither told the truck driver that the 5th machine was not his nor did he report it to us. As the machine was put on the truck in error, the warehouse did not know it was missing until they went to deliver it to the correct client who had paid us for it. It took a while to track down what had happened to it as there are many deliveries across Europe from that warehouse. Checking the CMR delivery paperwork the client signs, someone had crossed out 4 machines and wrote 5
A member of our team was visiting the client just before we discovered he had the machine on other business and the machine was not there and the client did not mention it. The machine can be seen on an Instagram post he put up just after delivery. Photos are taken of the goods in every truck in case we need to make insurance claim so we can prove the machine was delivered to him. We do not know if this client hid the machine prior to our visit or if he has sold it
We are a small company and this is a big loss for us as we now need to return the money to the client who paid for it. We cannot get him another machine for 3 months and he will not wait. He is very angry
Before approaching the client, is there anyone who can tell me our legal options are please
I am not a lawyer. But this is what I would do (well, actually what I'd do is talk to a Swiss lawyer first in the Canton of the client).
The warehouse company must cover the cost of collection and re-delivery. It was their mistake. They must make it good.
Explain to the first client that you have proof a machine was delivered and received that he hasn't paid for, and he must release it to the warehouse company. If he's reluctant or denies it, further explain that if he doesn't release the machine, you'll have no alternative but to go to the police and report a theft.
A couple of weeks ago, some men showed up with a nice (and already unboxed flatscreen television). I noticed them when they were about 20 meters from the door.
They asked me where I wanted it. I told them, it was a nice gesture, but we hadn't ordered a television recently.
I knew what was up, a neighbouring commune has a very similarly named street. They didn't check the name at the end of our driveway.
We had a laugh, they had some ice tea as they reboxed the TV, and my kid realised "we could have had a free tv," which I explained wasn't really the case.
Kind of the same, a lawyer or the police should be able to sort this and the delivery folks are at fault and the current receiver is certainly opening themselves to problems.
This sounds like a right mess because of many people/companies involved and blame fingers pointing in all directions.
In terms of legal options, I wouldn't really trust answers from random people in an online forum, even if they may have previous experience with these issues. This is the point where you may want to contact first your lawyer or your legal insurance, if you have one, they should tell you what to do. In real life legal options take long time, are costly and the result is never guaranteed.
For a more practical solution I would try to solve this amiably. Get the company that has your 5th machine now to cooperate with you and accept they received it in error and accept to return it to you. Get the delivery company to accept they delivered in error. Then see if the delivery company will re-deliver to the correct location or return to warehouse. If not, arrange re-delivery yourself and ask for compensation later, and be prepared to take a financial hit for that. That's life in business.
BTW, if the goods crossed EU/Swiss borders there must have been at least some customs trace. And if you want the machine out of Switzerland you'll need to figure out how to get it through customs again.
What exactly is the problem with approaching the client? Dont start with "I know you have it" but friendly ask him... if he denies it tell him you got plenty of indications otherwise including his own social media post... so if he is not aware of it, can he please ask his colleagues where they put it? Otherwise you would need to report a theft and you just dont want him or you to have that trouble... 99% chance thats the end of the story.
Well, the OP said in the title that client "will not return" and it seems that the machine was moved about by "the client" and that the someone has visited the client already... It's not very clear though and there is probably more detail that we don't know of. Hope the OP gets his machine back
The steps which you have to do is pretty simple. But if you do not use the right terms or know the Swiss law you might look like a fool.
For example there is no theft involved. Sounds crazy but true. The possible crime at hand is called unlawful appropriation. If the machine is sold all you could get back is the sales price.
Also, criminal charges will not get you there. If you want the machine or the money you have to press civil charges.
PS: If the other customer was not in Switzerland you will also have to deal with customs as there is now an undeclared machine in the country.
I might be making this up, but is there some sort of rule that if a company sends you something you didn’t order, you can keep it? Totally different league, but I remember asking this when I got sent race photos and a payment slip, but id never ordered them.
If the delivery company is at fault, surely they pay?
If it's part of a marketing exercise, then yes. If it's a foul up with a logistics company, then no.
I get sent copies of magazines with a payment slip. If I choose not to pay, I don't have to. I can keep the magazine. If the publishers then contact me and explain there was an error, I should never have had those magazines, at their expense I must return them.
In this case, it's at the transport company's expense, as they screwed up.
Thanks for all the replies, Was just checking before doing anything if any business minds on here knew of particular Swiss regulations on deliveries made in error and what a recipient who is a business is required to do so I didn't say anything incorrect
The machine is 280kg and roughly 2m x 1.5m x 1.8m and he has a small place. He now claims he put it in his store cupboard for 3 months unused and then forgot it was there. Even our recent visit didn't jog his memory that it was in his cupboard. He says we can collect it
His insta posts over that period show it has been fully unwrapped and in plain view and not in any cupboard. When we visited it was hidden away. Before any collection is made we are inspecting the machine and will then decide on next actions.
Incidentally, when we visited just a couple of days before knew he had the machine, we had a vehicle with tail lift capable of collecting right then which we was fully aware of
When a delivery has occurred in error, which is certainly and obviously the case here, the recipient is obligated to inform the sender. See Code of Obligations art. 6a, unsolicited goods . Failure to do so will put the recipient at fault. One consequence may be that the increased cost you had as a consequence (to pick it up but also lost business and impaired reputation) may have be to be paid by him, as well as usage cost where applicable (rent if you will).
And not least it may constitute, as already mentioned in post #10, unlawful appropriation, Criminal Code Art. 317 ff, especially if he refuses to hand it back. This would be a criminal offense, punishable with up to 3 years prison (in reality a fine should be excpected for a first time offender). The neat thing about such a verdict for you would be that the civil case of getting your money would be much easier. That seems not an option now that he says you can collect it, but the threat may be useful when it comes to getting paid for your costs.
Many thanks for that very useful information. His building is only about 80m2 so hard to believe he has a cupboard large enough to put something that size and forget it! We are now going to do a full inspection to check if he has been using it all this time, which we believe he has, and will then decide on a plan of action.