Provisional remedy

Provisional remedy

The purpose of a provisional remedy is the preservation of the status quo until final disposition of a matter can occur.

Under United States law, FRCP 64 provides with several types of seizure (e.g. garnishment, replevin, attachment) that a Federal Court may use pursuant to state law. FRCP 65 concerns Temporary Restraining Order (may be made ex parte) and preliminary injunction (requires some hearing).

In order to establish the constitutionality of a provisional remedy, two cases must be distinguished. The 3-part test established in "Matthews" determines whether a prejudgment remedy meets the constitutional requirements when Government seeks deprivation on its own initiative. The court must take into consideration the private interest of the party against whom the remedy is sought, the risk of erroneous deprivation as well as the probable value, if any, of addition or substitute safeguards and, the moving party's interest.

The 3-part test established in "Connecticut v. Doehr" determines whether a prejudgment remedy meets the constitutional requirements when Government action is applied to a suit between private parties. The due process analysis involves the same requirements as set forth in Matthews.

The court must also take into account whether there are exigent circumstances, a bon requirement, a judicial assessment, a detailed statement of factual basis, and a prompt post-seizure hearing.



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Look at other dictionaries:

  • provisional remedy — n. A temporary remedy given to a plaintiff to meet a present need while a lawsuit is in progress. The Essential Law Dictionary. Sphinx Publishing, An imprint of Sourcebooks, Inc. Amy Hackney Blackwell. 2008. provisional remedy …   Law dictionary

  • provisional remedy — noun A means of detaining in safety a person or property until a decision is made on some point in which they are concerned • • • Main Entry: ↑provision …   Useful english dictionary

  • provisional remedy — temporary remedy provided by the law until an issue is fully clarified …   English contemporary dictionary

  • provisional remedy — A remedy of a party to an action, not intended as a means of reaching a determination and adjudication of the issue or issues, but as a means whereby the party who invokes it successfully prevents the adverse party from taking steps during the… …   Ballentine's law dictionary

  • remedy — rem·e·dy 1 n pl dies: the means to enforce a right or to prevent or obtain redress for a wrong: the relief (as damages, restitution, specific performance, or an injunction) that may be given or ordered by a court or other tribunal for a wrong if… …   Law dictionary

  • provisional — pro·vi·sion·al /prə vi zhə nəl/ adj 1: provided for a temporary need: suitable or acceptable in the existing situation but subject to change or nullification a provisional government provisional custody of a minor 2: of, relating to, or being… …   Law dictionary

  • provisional — Temporary; preliminary; tentative; taken or done by way of precaution or ad interim. A term of the check collection process describing payment, credit or other settlement for a check or other item when the person giving the settlement reserves a… …   Black's law dictionary

  • remedy — The means by which a right is enforced or the violation of a right is prevented, redressed, or compensated. Long Leaf Lumber, Inc. v. Svolos, La.App., 258 So.2d 121, 124. The means employed to enforce a right or redress an injury, as… …   Black's law dictionary

  • Legal remedy — Judicial remedies Legal remedies (Da …   Wikipedia

  • procedural law — Law that prescribes the procedures and methods for enforcing rights and duties and for obtaining redress (e.g., in a suit). It is distinguished from substantive law (i.e., law that creates, defines, or regulates rights and duties). Procedural law …   Universalium

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