Lost disco jacket: what are my rights?

Lost disco jacket: what are my rights?

"I left my jacket in the cloakroom of a nightclub and was unpleasantly surprised never to find it again - what rights do I have against the owner of the establishment, who doesn't seem very keen to compensate me?

Thierry, Lausanne

Under article 472 paragraph 1 of the Code of Obligations, a deposit is a contract by which the depositary undertakes to the depositor to receive a movable thing entrusted to him by the latter and to keep it in a safe place.

In particular, the custodian is obliged to return the entrusted object to the depositor at all times, failing which the custodian will be held liable and will be required to make good any damage caused.

The issue here is whether you have entered into such a contract, at least tacitly. According to the Swiss Federal Supreme Court, a deposit contract can only be considered to have been concluded when the manager of the establishment in question is entrusted with the items in return for a receipt, keeps them in a separate room and returns them on presentation of the receipt. On the other hand, there is no contract of deposit when the manager merely helps the customer to remove an item of clothing and places it in an open cloakroom where the customer can retrieve it on his or her own, even if the cloakroom is supervised to some extent.

Accordingly, the tenant is only liable for the objects entrusted to him if he has undertaken, by means of a positive performance, to protect the object handed over to him by means of special facilities and, where applicable, surveillance measures. Consequently, he is only liable if and insofar as he has clearly demonstrated, in a manner that is recognisable to the customer, that he will take responsibility for the safekeeping of the items entrusted to him. Such an undertaking exists in particular when a cloakroom ticket is given to the customer, who must present it to recover his deposit.

This is why many public establishments take the trouble, for example, to display a notice at the entrance to their cloakrooms stating that they cannot be held liable in the event of theft, which is in line with current case law.