Preliminary vs. Provisional Measures in Litigation

Difference Between Preliminary and Provisional Measures

Preliminary Measures

Preliminary measures allow the future plaintiff to gather information needed to establish the facts of the case. The main requirement is demonstrating the necessity of specific information for the proceeding to establish the case in the complaint.

Two types of information-gathering measures exist:

• Testimony and Oral Testimony of a Person: To obtain knowledge held by someone.
• Submission of Documents: To access relevant documents.

To request such measures, one must demonstrate a just cause and relevance to the case.

Provisional Measures

Provisional measures, requested by a future plaintiff, aim to prevent risks of a future positive judgment not being enforced. The purpose is to ensure the future judgment upholding the complaint can be effectively enforced.

Key aspects of provisional measures:

• Guaranteeing Effectiveness: They exclusively guarantee the effectiveness of potential judicial protection granted in a possible affirmative judgment. This ensures the plaintiff receives the same effective relief as if granted at the time of the request.
• Preventing Non-Execution: They prevent measures from being unexecuted and ensure the plaintiff obtains the sought-after relief.

Demonstrating a substantial risk to the court is crucial for obtaining provisional measures.

Example: In a case involving a pharmacy, provisional measures might be necessary to prevent the disposal of potentially harmful medication before a judgment.

Characteristics of Provisional Measures

• Instrumentality: Provisional measures depend on a complaint or future judgment; they are not independent entities but exist to support the proceeding's aim.
• Variability: They can be modified, changed, or dissolved over time, adapting to the proceeding's developments.
• Temporary: Provisional measures have a limited duration, typically ending with the main proceeding's conclusion. They generally last until the judgment. If favorable, they remain until effective enforcement, changing in nature to become enforcement measures. If unfavorable, they are lifted even with a possible appeal, as the basis for their existence (fumus boni juris) ceases.