Conservatory or General Protective Measures
In our civil jurisdiction, the Judicial Code established conservatory measures as a mechanism for a person in a judicial proceeding to ensure that the outcome of the proceeding is illusory as to the claim of a right it considers in controversy with the other party.
The Judicial Code contains three types of precautionary measures: (i) sequestration, which fulfills its purpose of the constitution of a judicial deposit as a safeguard that is used mainly when it comes to claims of right of credits and indemnities; (ii) the suspension that seeks that during the process the counterparty suspends any type of transaction, negotiation, innovation, transformation, operation or work regarding the thing that is the object of the claim; and (iii) conservatory or general protective measures when the holder of a material or immaterial, real or personal right has a great fear that, in some justified way, the right that is the object of a claim may suffer an imminent and irremediable danger before a final judgment on the merits is obtained.
This type of precautionary measure, which is instituted in a precise manner in article 569 of the Judicial Code, is presented by means of an application in oida parte before a judge in order to request the adoption of measures for the conservation or protection more adequately to safeguard the right being sued. It is important to establish that it is essential for the applicant to present in the claim the evidence supporting the necessary appearance of a “good right” and the consideration of “periculum in mora” or an immediate or irreparable danger of undermining the claim.
Once approved by the Judge, the requesting party must deliver to the Court the amount corresponding to the damage bond that was established to guarantee the possibility of the damages that this measure could cause and the amount of the claim to be filed. Once all these conditions have been fulfilled In the case of the plaintiff’s request, the Court sha ll proceed to order the execution of the conservatory or protective measures in general according to the plaintiff’s request.
In this sense, we can take as an example that, when one of the parties considers that the counterpart with its actions or omissions can categorically affect with a detriment of its own financial resources or patrimonial assets that belong to it, through this type of precautionary measure it can request the preventive suspension of all actions or omissions (contracts or functions) until it can be determined through a judgment on the merits of the process that has been instituted. This type of measure can also be applied to protect as a precautionary measure the right of image, honor, and reputation of a person until the process in which the possible affectation of these personal rights is discussed is resolved.
Do not hesitate to contact our team of experts to obtain more information about the conservative or protective measures in general (precautionary measures) in Panama in the situation in question.
