Precautionary measures in civil proceedings

Precautionary measures in civil proceedings

Precautionary measures ensure effective judicial protection of a factual situation that can be potentially damaged.

Probably the reader already knows when asking for precautionary measures is necessary. In the case of non-payment of a bank-check, fearing that the debtor would become insolvent. In the case of inheritance, fearing that the assets may as a result of another co-heir. In the case of seizure of the majority of a company’s share capital, because of the fear of consequent mismanagement.

We have already mentioned the concept of precautionary measures when we talked about preventive seizure as a consequence of non-payment of invoices. In that article we set out their common requirements: the periculum in mora, the fumus boni iuris and bail.

In this article, we will continue analyzing the precautionary measures. We will attend the legitimate interests of the parties, its characteristics and its regulation in the Civil Procedure Act. We also include a brief reference to the third parties with a paramount right in the case of preventive seizure. We will attend the legal requirements to be meet for the adoption of precautionary measures in a different entry.

Regulation of precautionary measures in civil proceedings

From a general standpoint, the precautionary measures are regulated in Articles 721 et seq. of LEC. But there is also specific regulation for some of them. (LEC is from Ley de Enjuiciamiento Civil, Civil Procedure Act).

Regarding precautionary measures specifically regulated, the ones related to family procedural law are the most known. Let’s see some examples:

• Article 762 LEC: Regulates the precautionary measures foreseen for the procedures due to incapacity. These measures can be raised by the Court or at the request of a party.
• 773 LEC: Establishes the provisional measures derived from the admission of an application for annulment, separation or divorce.
• 808 LEC: This article regulates the formation of an inventory as a precautionary measure prior to divorce (or annulment or separation).
• 762 LEC: This article regulates the intervention of the hereditary Estate as a precautionary measure prior to the partition of the inheritance.

Apart from family law, Article 821LEC includes preventive seizure as a precautionary measure in executions of negotiable instrument. The writ admitting the execution of a negotiable instrument will include the preventive seizure of the defendant’s assets.

Regarding companies, Article 630LEC regulates the so-called “Judicial Administration” and tells us that it is applicable when:

• The majority of company’s capital stock or assets are seized.
• And/or to guarantee the seizure incomes.

Legitimate request of precautionary measures

Except in special proceedings, precautionary measures can never be raised by the Court (granted ex officio). They are always requested by the plaintiff. The measures may also be requested by the defendant when answering with a counter lawsuit.

The lawsuit must specify which interim measures are considered necessary to ensure the effectiveness of the procedure. The Court cannot grant more burdensome measures than those requested by the plaintiff.

Characteristics of precautionary measures

A number of requirements must be met for the Court to grant the requested interim measures.

The Court may agree an interim measure on defendant’s assets and rights if the claim meets the following characteristics:

1. It must be exclusively seeking the effectiveness of the judicial protection that may be granted in a future ruling.
2. It should be impossible to substitute the requested precautionary measure by another, equally effective and less harmful to the defendant.

Specific Cautionary Measures

The Civil Procedure Act specifies a number of precautionary measures. In accordance with its provisions the following interim measures, among others, may be granted:

1. Preventive seizure of property, to ensure the execution of sentences regarding delivery of: Money, assets, incomes and fungible things computable to cash.
2. The judicial intervention of productive assets.
3. Deposit of personal property.
4. Inventory of defendant’s property.
5. The preventive annotation of the lawsuit, when it refers to property registered in public registries.
6. A court order to provisionally cease an activity or conduct. Or, on the contrary, the temporary prohibition to cease a service.
7. The intervention of incomes obtained through an activity.
8. The temporary deposit of copies, works or objects produced in violation of intellectual and industrial property rules.
9. In Corporate law, the suspension in the application of some resolution challenged by any of the shareholders.
10. Those other measures which, for the protection of certain rights, are expressly provided for by law.

Third parties with a paramount right in the case of preventive seizure.

In the event of a preventive seizure, any third party may claim a preemptive right over the seized property. That third party must, in a separate procedure, have claimed the collection of money from the debtor.

The court that has agreed to the preventive seizure of the debtor’s assets will also rule about the paramount right.

This will be all for the moment. As we always advice you in this blog, if you have a legal problem, before taking any step, hire a lawyer.

If this article has been of interest to you, we also suggest the following reading:

The legal action for performance of obligations in Spanish law