PROVISIONAL REMEDIES

- implies something that is temporary, tentative

- It is a remedy in the “meantime”;
- That the main action is pending, the main cause of action has not yet been
resolved.

A provisional remedy is not a cause of action in itself. It is not an independent

action.

It depends upon a main cause of action before it can be used so you CANNOT FILE
an action for
- PRELIMINARY ATTACHMENT
- PRELIMINARY INJUNCTION
- SUPPORT PENDENTE LITE
Because they are provisional remedies.

These provisional remedies are related with SUBSTANTIVE LAW.

Remember, in this connection “principal contracts & accessory contract” parang
privisional remedies din.

You have a main cause of action (a main action) and you have the various provisional
remedies, like sa contracts meron tayong REAL ESTATE MORTGAGE, CHATTEL
MORTGAGE, ANTICHRESIS, PLEDGE, GUARANTEE, SURETYSHIP, take note that
these are ACCESSORY CONTRACTS!

A Real estate mortgage cannot exist in its own. It must exist with a principal contract
which is – contract of loan (simple mutuum)

a antichresis cannot exist on its own

a chattel mortgage cannot exist on its own
a pledge cannot exist on its own

They can exist only with a principal contract like a contract of loan
(yung mga yan, collateral sila ng mga utang)

ALWAYS REMEMBER: hindi lahat ng collateral ay property, dahil kung hindi property
diyan na papasok ang surety and guaranty.

Ang point lang dito is that, these are ACCESSORY CONTRACTS sa main principal
contract which is LOAN.

So, a SUPPORT PENDENTE LITE (a provisional remedy) CANNOT exist without a main
action for support or a criminal action and carries with it a civil action for support.
Halimbawa, nag bakasyon ka sa Boracay (you have ahouse here sa manila) after 2
months ng bakasyon mo, when you have returned from Boracay meron na nag occupy
ng bahay mo and the occupant has posted heavily armed bodyguards so di ka
makapasok. Sa kalye ka natutulog.
So pumunta ka ng court to claim your rights, ayaw mo mag file ng Criminal charge of
Trespassing but instead nag file ka ng Forcible Entry because that dumb ass guy took
your house through FISTS.

Summary procedure ang FORCIBLE ENTRY pero super bagal niyan lalo na dto sa
Pilipinas. Dahil meron ka pang mga affidavits and position papers na dapat ibigay sa
court tapos the court will have 30 days to resolve.

Kaya merong PROVISIONAL REMEDY for there to be some mode of relief while the
case is pending, you can protect before the court a MOTION where you can ask the
court for PRELIMINARY INJUNCTION in order to restore you to your position, so you
have a relief while the main cause of action is being heard.

Isa pang instance, your husband told you, “adios patria adorada” he left you but the
good thing is that alam mo na entitled ka sa support, so you asked a lawyer to file an
action for SUPPORT (ordinary civil action) sa RTC, jan kasi it is incapable of Pecuniary
estimation

Pero mind you, the court will be resolving the issue whether you are entitled for
support, at the meantime isang kahig isang tuka ka lang.

BUTI NALANG MERONG PROVISIONAL REMEDY. Need mo ng support in the

meantime. So ang tawag nating diyan ay SUPPORT PENDENTE LITE

Pero girl, that support is not final, the court may later on find our di ka pa pala entitled
sa support kasi you filed pla the action against the wrong husband.

ANO BA ANG MGA PROVISIONAL REMEDIES NATING?

STARTING FROM THE MOST POPULAR SA BAR:
- Preliminary attachment
- Preliminary Injunction
- Receivership
- Replevin
- Support Pendente Lite

These are also other perovisional remedies na hindi kasama sa enumeration ng

rules. For example if you go to Special Proceedings in Rule 99 you will find there are
2 processes in the nature of provisional remedies like
- Custody & adoption of minors
 In section 6 you can find,
- TEMPORARY CUSTODY OF A MINOR where the husband and wife are not
living together then there would be temporary custody.

Provisional remedy yun while the final custody is not yet resolved, you also have
visitation rights, provisional remedy yun but not included in the enumeration, in other
words HINDI EXCLUSIVE ANG ENUMERATION in Rules 57-61

In one case the Supreme Court talked about a provisional remedy that is not even in the
rules ( 408 SCRA 560 )

Facts:
Parcel of land, price P28M
Buyer made a dp = P10M ( in the form of earnest money)

Buyers condition: I will pay the balance if you sucessfully eject the tenants until May 8,
1995; failure to do so you will be liable for 4%

The seller fail to have the tenants leave the place because the seller cannot eject the
tenants he negotiated another sale but it was discovered by the first buyer, so the first
buyer filed

AN ALTERNATIVE ACTION FOR ANNULMENT OR RECISSION

When you annul a contract or rescind a contract there is an obligation of Restitution.

The parties have the obligation to return to each other what they have recieved.

The problem in this case is nag bayad na siya ng P10M di niya sure paano mababalik
yun so what the first buyer did was to move for the Provisional Remedy of DEPOSIT
ideposito ang pera sa court habang di pa resolved ang kaso ng annulment at rescission

Defendant: What f***?! Walang provisional remedy na DEPOSIT! Sige isa isahin natin

Rule 57 – Preliminary attachment

Rule 58 – Preliminary Injunction
Rule 59 – Receivership
Rule 60 – Replevin
Rule 61 – Support Pendente Lite

Plaintiff’s Lawyer: “While it is true that DEPOSIT is not included in the rules, then we find
vaccuum in the rules but the court SHOULD NOT REFREAIN FROM DECIDING ON THIS
MATTER SIMPLY BECAUSE IT IS NOT INCLUDED IN THE RULES. Article 9 of the CC. this
is the case where equity will come in, once the law is silent then equity will come in.
So, kung magastos ung P10M, then he will be unjustly enriched at the expense of my
client. The rules of justice and fairness demands that the deposit be accepted.

Supreme Court: we, in the exercise of our equity and jurisdiction, we accept the deposit
of P10M

This is a provisional remedy “Pro hac vice” considering the circumstances of the case in
the exercise of the court’s equity & jurisdiction.

Now,
PRELIMINARY ATTACHMENT

Hmm.. attachment? What do you attach?

- we attach a property EITHER REAL OR PERSONAL

Kaninong property?
- the property of the adverse party

Sino itong adverse party? Is it necessarily the defendant?

- oftentimes it is the defendant’s property but the adverse party need not to be
the defendant becuase Sec 1 of Rule 57 tells you “the plaintiff or any proper
party”

that means that the defendant can apply for PRELIMINARY ATTACHMENT when he
files a counterclaim he now becomes the claimant aslo when he files a crossclaim he
becomes a claimant also when he files a third party complaint he then becomes a
claimant.

The is the reason why an application for a writ of preliminary attachment is not the sole
prerogative of the plaintiff because the defendant could be a plaintiff – depending upon
the pleading filed.

Why do you have to file an issuance of the writ of preliminary attachement?

To secure the future judgment.

To secure for instance, the amount fixed in the promissory note – debt is due – there
was a demand – there is NO payment – the amount let us say is P2,500 interest and
damages

So ano ang gagawin, meron na ba siyang cause of action to file an action for collection
of sum of money?
Yes.
Let us go back to the rules of execution, this is a money judgment, the sheriff will go
first to the losing party (judgment obligor)

Syempre the judgment obligor will say na wala siyang pera, walang property – all of the
effin excuses!

Btw, the rules of court allows the acceptance of a certified check – exception yan sa
bawal pambayad, ang check.

Ang gagawin ng sheriff mag ask ng CASH if wala then CERTIFIED CHECK if wala,
PROPERTIES, he’ll ask which among his properties gusto niya iattach, if di siya
mamimili.

Then si sheriff ang mamimili, PERSONAL property first then REAL property.

BTW, non negotiability of the instrument is still valid, lalo na king notarized, the
negotiability only affects the manner of transferring di mo manegotiate pero pwede mo
iassign.

So, tuloy natin ang kwento, walang mga properties walang makuha ang sheriff dahil
mula nung ma file ang action he already disposed all of the properties so the judgment
is useless.

It is only a JUDGMENT ON PAPER

That is why the rules allow you to avail of
WRIT OF PRELIMINARY ATTACHMENT
- so that, these properties will be under the custody of the court. So that, when
you win the case there is something to look forward to.

Although we have a remedy under the substantive law, if kapag binenta niya during the
pendency of the action that could be in bad faith.
remedy: Action to rescind the contract

Yes, meron nga tayong remedy na ganyan pero bakit mo pa paabutin sa ganyan diba. In
rescissible contract there is no defect you will rescind simply because you have caused
an injury or lesion.

A Rescissible Contract is a valid contract. Pwede mo i-rescind because of FRAUD

So, since matalino tayo, di na nating paabutin na maibenta na niya ung property.
Pwede na natin siya pigilan ang benta through
PRELIMINARY ATTACHMENT – the PROPERTY WILL BE PUT IN CUSTODIA LEGIS.
What if naka mortgage sayo ang mga properties ng may utang sayo, so secured ang
utang mo kelangan pa ba ng Preliminary attachement?

YES. Minsan kailangan because the volume of the properties mortgaged is not
sufficient to cover the loan. Also, even though these properties are mortgaged, he
cannot be deprived of his right of ownership, any stipulation prohibiting the owner of
the property from alienating it is void.

Did you know that there are also a provisional remedy in Criminal procedure. Because,
every person liable for a felony is also civilly liable.
So, ang mga provisional remedies na ito ay hindi applicable sa admin aspect ng case but
sa CIVIL ASPECT lang ng case.

Anong stage ng proceeding ba tayo pwede humingi ng Preliminary attachment?

Can I apply for a preliminary attachment by the time my action is commenced?

YES!

Pwede ba before pretrial?

YES

Can I ask for preliminary attachment after pretrial?

YES

How about during the trial?

YES

Can I ask for it after trial?

YES!

Can I ask for it immediately before judgment?

YES!!!

Can I ask for it immediately after the judgment is rendered?

YES.

Can I ask for it during appeal?

YES. Because during appeal there is no entry of judgment yet.
Because the execution is not yet final.

You can ask for Preliminary Attachment

BEFORE THE ENTRY OF JUDGMENT! – when the court enter the dispositive portion
fo the judgment in the records
 - a writ of preliminary attachment should be filed before entry of the
judgment.
- Jurisdiction over the person of the defendant is not required for a writ
preliminary attachment to be issued by the court. In other words, a writ of
preliminary attachment can be issued ex parte.

TAKE NOTE HOWEVER!

That you CANNOT implement the writ of attachment neither enforce it. AS LONG AS
THE COURT HAS NO JURISDICTION. So, dito na papasok ang RULE 57, so if meron ka
ng WRIT ex parte and you want it to be implemented.

The implementation of the Writ of Attachment, must be preceded by the Service of

summons or simultaneous to the service is the implementation of the writ.

DAVAO LIGHT POWER COMPANY CASE

THE STEPS IN THE IMPLEMENTATION OF THE WRIT.
1. The issuance of the order of attachment
2. The issuance of the writ pursuant to the order
3. The implementation or enforcement.

Note: sa no. 3 lang required ang jurisdiction of the defendant. Not in no. 1 and no. 2

Thus, you cannot enforce the writ without jurisdiction over the defendant.

However, there are instances where Rules on Simultaneous Delivery of Summons may
be dispensed with.
1. Whent he defendant cannot be served in person
2. When he cannot be served by substituted service
3. When he is out of the country or is a non resident

But, as much as possible we follow the rules on simultaneous service

Ano ba ang iseserve ng simultaneous?

1. The writ of attachment
2. Summons together with the copy of the complaint order.

NOTE: writ of preliminary attachment can be issued even without acquirign jurisdiction
over the person of the defendant. However, the same cannot be implemented until
jurisdiction over the defendant is acquired.