Monograph Series · Third series › Part V Enforcement and actual performance › III-35 · First edition
The Exits from Provisional Remedies: Objection, Revocation, and Liability for Wrongful Execution
When interim protection is no longer justified, who undoes which loss?
Volume contents
Abstract
This volume asks who undoes which loss when interim protection is no longer justified. The issuance of a preservative measure is not a determination of substantive rights. Changed circumstances, the outcome on the merits, and losses from execution must be linked, but revocation must not be equated with liability for damages. The path to relief opens where a ground for revoking the preservative measure is recognized, or where fault, loss, and causation concerning wrongful execution are recognized so that the relevant relief becomes available, and closes where only an objection is filed without any basis for revocation or suspension so that execution continues, or where, in a damages claim, the presumption is rebutted and there is no other basis for fault. The six sections address, in turn, what preservation leaves in place, the debtor's objection, exits based on changed circumstances, rules to carry over to provisional dispositions, liability for wrongful preservation, and release and recovery of losses. The strongest counterargument is as follows. Raising the risk of liability for damages will chill even legitimate applications for urgent protection. The choice of the initial preservative measure, the maintenance of negotiations and management of their conclusion, and risk management for failed preservation are not addressed in this volume.
Synthetic case
The whole volume follows this invented case. It is not a real matter, and its facts are not legal findings.
After Creditor A's provisional attachment, Creditor A's loss on the merits becomes final, and Debtor B demands damages for business losses.
6 sections and their questions
- 01What Preservation Leaves in Place
Does a provisional attachment mean that the claim has already been collected?
23 min - 02The Debtor's Objection
Does challenging a provisional attachment immediately halt execution?
20 min - 03Exits Based on Changed Circumstances
Does a provisional attachment that was necessary at the outset continue to remain in place?
21 min - 04Rules to Carry Over to Provisional Dispositions
Do the exits from provisional attachment apply as they are to provisional dispositions?
20 min - 05Liability for Wrongful Preservation
Does losing on the merits always entail no-fault liability?
22 min - 06Release and Recovery of Losses
When a provisional attachment is lifted, are the losses incurred in the meantime also recovered?
20 min