Libro Quinto Título I. Providencias cautelares

To guarantee the safety of persons, to protect them from mistreatment or from acts condemned by law, morals or good customs, First Instance judges shall order, on their own initiative or at the request of a party, according to the circumstances of each case, their transfer to a place where they may freely express their will and enjoy the rights established by law.

Lesser judges may proceed in cases of urgency, immediately reporting to the corresponding First Instance judge with the proceedings they have carried out.

The judge shall go to the place where the person to be protected is located, so that such person may ratify his or her request, if applicable, and shall designate the house or establishment to which such person is to be transferred.

Thereafter, he shall carry out the transfer to the designated house or establishment, shall deliver by record the property for personal use, shall fix the maintenance pension to be paid, if applicable, shall take the other measures necessary for the safety of the protected person and shall deliver to such person an order for the authorities to provide the protection required in the case. If the matter concerns a minor or incapacitated person, the order shall be delivered to the person to whom custody of his or her person is entrusted.

If minors or incapacitated persons are involved, the pertinent matter shall be certified, on its own initiative, to the Public Prosecutor's Office, so that, under its responsibility, it may initiate such actions as may be appropriate.

If there is opposition by a legitimate party to any of the measures ordered by the judge, it shall be processed in a separate record under the procedure for incidents. The order resolving it is appealable, without such measures being interrupted.

Whenever it comes to the knowledge of the judge by any means that a minor or incapacitated person has been abandoned upon the death of the person in whose charge the minor or incapacitated person was or due to any other circumstance, the judge shall order, with the intervention of the Public Prosecutor's Office, the measures conducive to the protection, custody and representation of the minor or incapacitated person.

At the request of the parents, tutors, guardians or custodians, the judge shall order such measures as it deems appropriate so that the minor or incapacitated person who has abandoned the home be returned to the persons under whose care or custody they were.

The judge shall cause the minor or incapacitated person to appear before him, shall draw up a record setting forth all the facts related to the cause of the abandonment and shall issue such orders as he deems necessary and shall initiate, where applicable, the corresponding proceedings.

These proceedings shall be made known to the protutor, if the minor or incapacitated person has one, so that he may take the appropriate steps in their defense.

When there is fear that the person against whom a claim is to be filed or has been filed may absent themselves or conceal themselves, the interested party may request that a travel restriction be imposed on them in the place where the proceedings are to be conducted.

The travel restriction of those who are under parental authority, guardianship or custody, or in the care of another person, requested by their legal representatives, shall be ordered without need of guarantee, any judge being competent; and it shall produce as its sole effect, to maintain the legal situation in which the minor or incapacitated person is found.

Upon ordering the travel restriction the judge shall warn the defendant not to leave the place where the proceedings are being conducted or are to be conducted, without leaving an agent who has expressly accepted the mandate and with sufficient powers for the continuation and conclusion of the proceedings, and, as applicable, without fulfilling the requirements of the following paragraph.

In proceedings concerning maintenance, the defendant must pay or deposit the amount of past-due maintenance that is legally demandable and guarantee performance of the obligation for such time as the judge determines according to the circumstances. In proceedings for debts arising from lodging, food, or purchases of merchandise on credit, the defendant shall provide security for the amount of the claim. The defendant who has drawn a check without having available funds or who disposes of them before expiration of the time limit for the drawn check to be presented for payment shall also provide such security.

Once the agent has appeared in the proceedings; the security has been provided to the satisfaction of the judge in the cases referred to in the preceding paragraph, and, as applicable, what relates to past-due maintenance has been complied with, the travel restriction shall be lifted without further procedure.

If the appointed agent leaves the republic or becomes unable to appear at trial, the judge without forming an interlocutory issue shall appoint a judicial defense counsel for the defendant.

Both the appointed agent and the judicial defense counsel shall in all cases, by operation of law, have all powers necessary to bring the proceedings in question to completion.

The judge on its own initiative and immediately shall communicate the travel restriction to the migration and police authorities, as well as to such offices as the judge deems appropriate, to prevent the flight of the person subject to the travel restriction. The lifting of the travel restriction shall be communicated in the same manner.

The person subject to the travel restriction who breaches the travel restriction or who fails to appear in the proceedings in person or through a representative, in addition to the penalty deserved for his disobedience, shall be returned at his expense to the place from which he improperly absented himself, or a judicial representative shall be appointed for him in the manner provided in the preceding article, for the proceedings in which the travel restriction was ordered and for the other matters related to the litigation.

When the declaration, creation, modification or extinction of any right in rem over immovable property is disputed, the plaintiff may request annotation of the claim, in accordance with the provisions of the Civil Code.

Likewise, annotation of the claim over movable property may be requested when the respective registries have been organized.

Once the annotation has been effected, any alienation or encumbrance that the defendant makes over the aforementioned property shall not prejudice the applicant.

Precautionary attachment of property sufficient to cover the value of the amount claimed, interest and costs may be ordered, for which purpose the articles regarding this matter established for the execution proceedings shall be applicable.

Sequestration shall be carried out by dispossessing the thing from the hands of the debtor, to be delivered on deposit to a private individual or to a legally recognized institution, with prohibition in both cases of making use thereof.

The same procedure shall be followed when ownership of movable property, livestock, rights or legal actions is claimed, or that any right over the same be constituted, modified or extinguished.

When guarantee measures affect establishments or properties of a commercial, industrial or agricultural nature, intervention of the businesses may be ordered.

Intervention may likewise be ordered, in cases of co-ownership or partnership, for the purpose of preventing the fruits from being improperly used by a co-owner to the detriment of the others.

The order directing the intervention shall define the powers of the administrator-in-charge, which shall be limited to what is strictly indispensable to secure the right of the creditor or of the co-owner, allowing to the greatest extent possible the continuity of the operation.

Once the right of the creditor has been secured, termination of the intervention shall be ordered immediately.

Apart from the cases regulated in the preceding articles and in other provisions of this Code on interim protective measures, whoever has well-founded reason to fear that during the time necessary to assert their right through the proceedings established in this Code, such right is threatened by imminent and irreparable harm, may request in writing from the judge the urgent measures that, according to the circumstances, appear most suitable to provisionally secure the effects of the decision on the merits.

The party requesting any precautionary order shall be liable therefor. Consequently, the costs, the damage and losses caused shall be borne by him, and such order shall not be executed if the interested party does not furnish sufficient security, in the discretion of the judge hearing the matter. This security, when the action to be brought is for a determined value, shall be no less than ten percent nor more than twenty percent of said value; when it is for an undetermined amount, the judge shall fix the amount of the security according to the importance of the litigation.

For purposes of fixing the security, whoever requests a precautionary measure is obligated:

1.To determine with clarity and precision what is to be demanded of the defendant.

2.To fix the amount of the action, if applicable.

3.To indicate the title thereof.

When the precautionary measure is not requested beforehand, but upon filing the claim, it shall not be necessary to post security in the case of travel restriction, registration of claim and judicial intervention.

Nor shall prior posting of security be necessary when attachment or sequestration of property is requested in the claim, if the law specifically authorizes that measure in relation to the disputed property; or if the claim is based on documentary evidence which, in the judge's judgment, authorizes issuance of the precautionary order.

However, in cases of registration of claim, judicial intervention, attachment or sequestration that do not arise from execution proceedings, the defendant has the right to request that the plaintiff post sufficient security, in the judge's judgment, to cover the damage and losses caused to him if he is absolved. If the security is not posted within the period and in the amount indicated by the judge, the precautionary measure ordered shall be lifted.

For purposes of the preceding paragraph, the period to post the security shall be no less than five days.

In any case in which a precautionary measure is proper, except as provided in Article 524 for travel restriction, the defendant has the right to post sufficient guarantee, in the opinion of the judge, covering the claim, interest and costs, to prevent the precautionary measure or to obtain its immediate lifting. The petition shall be processed in the form of an incident. The guarantee may consist of mortgage, pledge or bond; and once the guarantee has been formalized, the precautionary measure ordered shall be lifted.

The defendant may also proceed in accordance with the provisions of paragraph 2 of Article 300.

Precautionary measures shall be issued without hearing the party against whom they are sought and shall produce all their effects, notwithstanding any incidental proceeding, exception or appeal asserted against them, while they have not been revoked or modified.

Once the precautionary order has been executed, the party who requested it shall file their claim within fifteen days, if the proceedings are to be pursued in the place where it was issued. If the proceedings are to be pursued in another place, the judge shall take into account the term of distance.

If the plaintiff fails to comply with the provisions of the preceding paragraph, the precautionary order shall be revoked at the request of the defendant, after a prior incidental proceeding.

When the precautionary order is issued by one who is not the judge who must hear the principal matter, the proceedings shall be remitted to the latter, so that they produce the corresponding effects in accordance with law, in relation to the respective file.

Whoever obtains the precautionary order is obligated to pay the costs and the damage and losses:

1º.If they do not file the claim within the legal time limit.

2º.If the order is revoked.

3º.If the claim is declared inadmissible.