ON MEMO | EN

- THE APPEAL: THE FOUNDATION OF THE ACTION.
The dispute opposing the parties may be summed up as follows: whether the jewellery shop which does not dispute receiving the piece of jewellery under dispute from the deceased Mrs ... (the client) has returned the said piece of jewellery to the deceased or her heirs. On this point, the parties disagree completely. The jewellery claims the benefit of Article 1924 of the Belgian Civil Code which provides that when the deposit exceeds the sum of euro 375, and there is no written proof, the depository is believed upon his representation, either for the very deposit or for the item which is the object of it, or for the restitution of the same. It considers that the deposit not being evidenced by any writing, the claim must be believed, according to which Mrs .... 's goods (the deceased client) had been returned to it in full. It also adds that the document invoked itself by the plaintiffs as evidence, i.e. the jewellery's workshop logbook n? 5155, established both that the piece of jewellery whose return is claimed for, has indeed been deposited with it on 29 October 1988, but that in the meantime, this piece of jewellery (apart from the necklace which has been used to make a gold ring and given to Mrs ... (the deceased client) on 16 December 1988) has been given back on 16 January 1999. It then accuses the plaintiffs to make use of the document to evidence the deposit when the same document also evidences the coveted item has been returned.
 
A contrario, the document filed by the plaintiffs, even if it is a workshop logbook of the company, and even if the latter has indeed given this document to Mr... (the heir), is undisputedly a writing which the plaintiffs may base their claim on and which makes Article 1924 of the (Belgian) Civil Code inapplicable. Under such conditions the general provisions of Article 1315 of the same Code must be applied. As indicated by the company (the jeweller), the workshop logbook has to be taken as a whole. Yet, it is not correct to claim that this document evidences the plaintiffs' claimed item has been returned.
 
The latter claim, and rightly so, that the very date of 16 January 1999 is mentioned at the bottom of the workshop logbook and nobody knows under which circumstances this mention has been added. Adding a date without any further details is in no way evidence that the claimed item has indeed been returned, even less so as the same workshop logbook contains a certain amount of other details ("deposited on ... with X ... returned here"). The Court of appeal adds that it is furthermore wrong from the jewellery to claim that the plaintiffs cannot support with any document that it would still be holding the remaining of the diamond necklace belonging to Mrs .... (the deceased). It is not up to the suing plaintiffs to establish that the jewellery still holds the piece of jewellery, but merely that the said piece of jewellery has been entrusted; It is then up to the jewellery to establish, according to Article 1315, paragraph 2 of the (Belgian) Civil code that it has returned the piece of jewellery, which it does not do.