Anda di halaman 1dari 3

PROVISIONAL REMEDIES NOTES/QUESTIONS 06/27/11 Why Provisional Remedies? Provisional remedy after judgment?

Provisional remedy after finality of judgment? Definition of civil action? Provisional Remedy a civil action? No. Why? Merely incidental, dependent on main action. Two kinds of civil action? Ordinary civil action and special civil action. Governed by ordinary rules on civil action but there are rules specially applicable only to special civil action. Basis of civil action is cause of action. Definition of cause of action? 4 Requisites? Is there a need for a cause of action for you to apply provisional remedy? Yes, because provisional remedy is ancillary, cannot exist by itself, there must be a cause of action to justify the application for provisional remedy If you have valid cause of action, your application for provisional remedy is granted? No, the requirements for applying for provisional remedy are specific and therefore not dependent on the cause of action. Does it mean to say that when your application for provisional remedy is meritorious that you will win in the main action? No, bec main action is dependent on your cause of action while your application for provisional remedy is dependent on something else separate from cause of action Purposes of Provisional Remedy? Preserve and protect rights of parties while the case is pending, secure judgment, preserve status quo You have property, neighbour is encroaching on your property by constructing a fence beyond the boundary of his property, your remedy to protect your right over your property is to stop him from completing the fencing so that he will not be able to encroach on your property. This being your main action, you cannot expect that court will immediately issue the order stopping that person. You will have to go through process of preliminary conference, pre-trial, filing of complaint, service of summons, pre-trial, trial, etc, in the meantime the fencing will be continued and by the time you have judgment it is already done. Thus there is need in this situation for you to have remedy to protect your right that while the case is pending, the fencing will be stopped. The law allows that. Neighbour borrowed money from you, substantial amount. You found out that neighbour is leaving for states, migrating there with intention to defraud you. Your remedy is file case for collection of sum of money but it will take a long time. Since your neighbour is departing, you have no assurance that in case you win the case, that judgment will be satisfied. Thus, you need a remedy that can secure satisfaction of judgment in case court renders it in your favour. This is called provisional remedy. Which court may grant provisional remedy? Court which has jurisdiction over the main action. No separate jurisdiction of court over application of provisional remedy. Different kinds of civil actions? Actions capable of pecuniary estimation/actions for sum of money where jurisdiction depends on amount, rule is totality rule. Real actions. Actions not capable of pecuniary estimation. Is action for support an action

capable of pecuniary estimation? No. Why? Bec the main issue is whether the plaintiff is entitled to support or not and this is not capable of pecuniary estimation. Can first-level courts issue/grant application for provisional remedies? Yes, as long as it has valid support under the rules and has jurisdiction over the main action. Example? Actions interdictal. Writs for preliminary injunction. If first-level courts have this authority, second-level courts, CA, and SC can issue/grant application for provisional remedies. Kinds of Provisional Remedies? Preliminary attachment, Preliminary injunction, Receivership, Replevin, Support Pendente Lite. (AIRRS) But not limited to only these 5 remedies. Example. Case for custody of minor is filed, court can grant a remedy while case is pending like visitation right or temporary custody. In exercise of equity jurisdiction, court can require the deposit of sum of money in some cases like vendee in contract of sale files action for rescission or annulment of contract of sale, thus there is restitution of amount paid to the vendor, in the meantime that case is pending, the vendee can seek for order from court to preserve what he has paid that the vendor deposit the amount in the bank or in court. Thus, not limited merely to these 5 enumerated. RULE 57 PRELIMINARY ATTACHMENT Definition of preliminary attachment? Order directed to sheriff to take or have the property placed under the custody of the court while the case is pending to protect the right of party by securing the judgment. Directed to who? Sheriff. What will sheriff do? Take custody. Actual? Not necessarily. Can you attach real property? Yes. Does sheriff take actual custody of real property? No. Subject of preliminary attachment? Real or personal Who can apply? Any party as long as requisites are satisfied. But for the defendant, if he has a counter-claim. Attachment is purely statutory in that it cannot exist without a statute granting it, not only referring to rule 57 of rules of court. There is law in art 1177 of the NCC which is the basis of a provisional remedy Purpose: allow seizure of property, place it in custody of court, so that judgment of court may be secured, one way by which court can acquire jurisdiction (i.e. in personam case. if basis of classification is the relationship of the action to a real property like to recover ownership, possession or interest in real property is called real action. Any action that is not related to real property is personal action. If purpose of action is to bind only parties to the action, including their successors-ininterest, in personam action. If purpose of action is to bind the entire world, in rem action. Significant because tells us whether court needs to acquire jurisdiction over defendant or not. In personam, court must acquire jurisdiction over the person of the defendant by service of summons either personal or substitute. Instances where action is in personam but you cannot serve summons either personal or substituted despite efforts. Thus, as a rule, case will not move because court is required to acquire jurisdiction over the defendant. In case this happens, remedy is convert the action in personam to action in rem because what is required is for the court to acquire jurisdiction over property. This is done by attaching property of defendant, must comply with requisites for issuance of writ of preliminary attachment.)

Difference bet preliminary attachment and attachment on execution/levy on execution? LOE is purpose of enforcing/satisfying the final and executory judgment. WPE, sheriff takes properties of defendant, place it in custody of court but these properties cannot be immediately used to satisfy the debt, the applicant must wait upon finality of judgment. Garnishment: distinctive characteristics: applies to properties not capable of manual properties, property belongs to third party. Purpose: warning not to pay money or deliver property to defendant (one against whose property is garnished). There is forced novation (there is substantial change in contract). can be preliminary, can also be final. Grounds for Preliminary Attachment: 1. action for the recovery of a specified amount of money or damages, cause of action arising from law, contract, quasi-contract, delict or quasi-delict, party is about to depart from the Phils, with intent to defraud: establish 3 things: main action is for specified amount of money, party against whom application is filed is about to depart, with intention to defraud creditors. Main action is to enforce civil obligation (has five diff sources). Example based on law, art 19, 20, 21, 33. Provisional remedy is also remedy in criminal cases under rule 127. Not enough that person is about to depart from Phils, must also establish that departure is with intention to defraud. Intention to defraud may be alleged by executing an affidavit, or incorporate in a complaint and have this complaint with application verified, under oath. Moral and exemplary are not included because these are not liquidated, must be established and proved. If the defendant is a foreigner, will it necessarily comply with the first ground for applying writ of preliminary injunction? No, prove that foreigner is about to depart the Phils with the intention to defraud creditors 2. action for money or property embezzled or fraudulently misapplied or converted to his own use, by public officer, officer of corp, attorney, factor, broker, agent, clerk, in the course of employment, or by any other person in a fiduciary capacity, or willful violation of duty establish: case is action for money or property embezzled, fraudulently misapplied, etc 3. action to recover possession of property unjustly or fraudulently taken, property or any part thereof, concealed, removed, or disposed property may be personal or real 4.