What Is Provisional Attachment of Claim?
Every individual has the right to initiate legal proceedings in order to assert their rights. Filing a lawsuit before the courts requires the submission of a formal petition to the competent court.
One part of the petition is devoted to the claim. The claim refers to the relief the plaintiff seeks from the court. In certain cases, there is a risk that the claim may be lost or rendered ineffective. Therefore, securing the claim requires specific legal measures, including the provisional attachment of the claim.
The Role of the Court and the Defendant in Provisional Attachment Proceedings
Concept of Provisional Attachment of Claim
Linguistically, the term ‘provision’ means ‘safeguarding’ or ‘securing’. Accordingly, provisional attachment of a claim may be defined as securing the subject matter that the plaintiff requests from the court. Under Article 121 of the Civil Procedure Code, provisional attachment includes the seizure of movable and immovable property.
Litigants often face lengthy judicial proceedings. The time interval between filing a petition and the issuance of a final judgment may be considerable. During this period, the defendant may transfer assets or funds, thereby preventing effective enforcement of a judgment in favor of the plaintiff. In some cases, this delay may also result in deterioration or damage to the subject matter of the dispute.
For this reason, the legislator has established a legal mechanism known as the provisional attachment of claim to prevent such situations. Through this mechanism, the plaintiff may secure the subject matter of the claim by obtaining a court-issued attachment order and preventing the defendant from transferring, losing, or damaging it.
Circumstances for Issuance of Provisional Attachment
The court may issue an order for provisional attachment in favor of the plaintiff, depending on whether it is necessary to require counter security from the plaintiff.
Issuance Without Requiring Security from the Plaintiff
The court may issue a provisional attachment order without obtaining security from the plaintiff in the following cases:
- When the principal claim is based on an official document.
- When the subject matter of the claim is exposed to risk of waste or dissipation, as established through witnesses, presumptions, indications, or local inspection.
- When the dispute relates to commercial instruments whose non-payment has been officially confirmed, such as protested promissory notes, checks, or bills of exchange.
Issuance of Provisional Attachment with Requirement of Security
In other cases, the court requires the plaintiff to deposit security for potential damages that the defendant may suffer as a result of the attachment order. This amount must be paid to the judiciary fund before the attachment order is enforced.
The security is provided in the form of cash. It is intended to compensate the defendant for any damages caused by the provisional attachment if a final judgment is rendered in favor of the defendant.
It is important to note that the defendant may also apply for security against the plaintiff. Such requests are examined in the following cases:
- When the defendant seeks security for damages arising from the litigation.
- When the defendant seeks security for damages resulting from attorney fees incurred due to mandatory legal representation.
Conditions for Issuance of Provisional Attachment
Issuance of a provisional attachment order requires a formal request by the plaintiff. The court may not issue such an order without the plaintiff’s request.
The plaintiff may submit the request before filing the main lawsuit, simultaneously with the petition, or during the course of the proceedings.
The conditions that must be established before the court are as follows:
- The claim must be definite and enforceable. The claim must not be contingent or deferred and must be currently due. However, if the claim is based on an official document and the plaintiff proves that it is at risk of waste or dissipation before maturity, an exception may apply.
- The amount of the claim must be ascertainable if it involves property.
- The claim must relate to a specific and identified subject matter.
Competent Authority
The court competent to issue a provisional attachment order is the same court that has jurisdiction over the principal claim. The defendant may file an objection to the order within ten days. It should be noted that a provisional attachment order is not subject to appeal before the appellate court.
Frequently Asked Questions About Provisional Attachment of Claim
Provisional attachment of claim refers to securing the subject matter requested by the plaintiff in order to prevent its transfer, loss, or damage by the defendant until a final judgment is issued.
When the claim is based on an official document, when the claim is at risk of dissipation, or when it involves protested commercial instruments such as checks, promissory notes, or bills of exchange.
In other cases, the court requires the plaintiff to deposit security to cover potential damages suffered by the defendant if the final judgment is rendered in the defendant’s favor.
The claim must be definite and enforceable, its amount must be ascertainable, and it must concern a specific and identifiable subject matter.
The court competent to hear the principal claim has jurisdiction. The defendant may object within ten days, but the order is not subject to appeal. What is the provisional attachment of a claim, and what is its purpose?
In which cases may the court issue a provisional attachment without requiring security from the plaintiff?
When does the court require security from the plaintiff?
What conditions are required for the issuance of a provisional attachment?
Which court has jurisdiction, and is the order appealable?
