Overview

Preliminary attachment and preliminary injunction are both provisional remedies under Philippine civil procedure, meant to protect a party’s interests while the main case is still pending. They are powerful, court-granted measures that can dramatically affect property, conduct, and leverage in litigation—but they protect different rights, require different showings, and operate in very different ways.

At the most basic level:

Preliminary attachment is about property: it is a remedy that allows the court to seize and hold a defendant’s property (as security) to ensure a judgment for money or property will not be rendered ineffectual.
Preliminary injunction is about conduct: it is a remedy that orders a party to do or refrain from doing an act to preserve the status quo and prevent irreparable injury while the case is being decided.

Both remedies are extraordinary, generally require a bond, and are designed to prevent frustration of the court’s future judgment.

Governing Rules and Nature

Preliminary Attachment

Rule basis: Rule 57, Rules of Court.
Essential nature: A remedy to secure the satisfaction of any judgment that may be recovered by the plaintiff—usually money judgments, though it can also secure recovery of property in proper cases.
Target: The defendant’s property, through levy.

Preliminary Injunction

Rule basis: Rule 58, Rules of Court.
Essential nature: A remedy to preserve the status quo and protect a right in esse (a right currently existing and enforceable), by restraining or compelling acts pending resolution.
Target: The defendant’s actions (or in rare instances, a public officer/agency within limits).

Core Purpose: Security vs Restraint

Attachment: Security for Judgment

Preliminary attachment is primarily a security device. It’s used when there’s a risk that the defendant will hide, dissipate, transfer, or remove assets, leaving the plaintiff with an empty victory even if the plaintiff wins the case.

Typical litigation fear it addresses: “Even if I win, I won’t be able to collect.”

Injunction: Prevent Irreparable Injury; Preserve Status Quo

Preliminary injunction prevents serious and irreparable harm by ordering a party to stop (or sometimes perform) an act during the pendency of the case. It is used when damages later will not adequately repair the harm, or where rights will be rendered meaningless without immediate restraint.

Typical litigation fear it addresses: “By the time the case ends, the harm will already be done.”

What Each Remedy Operates On

Attachment Operates on Property (In Rem / Quasi In Rem Effect)

The sheriff levies on identified property of the defendant.
The property is taken into custodia legis (custody of the law) or subjected to a lien-like encumbrance, depending on type (real property vs personal property, garnishment, etc.).
Attachment can involve garnishment of credits, bank deposits, receivables.

Injunction Operates on Persons/Conduct (In Personam Effect)

The court issues an order directing the respondent:
- not to do a threatened act (prohibitory injunction), or
- to do an act to restore status quo ante in rare cases (mandatory injunction; higher threshold).
Disobedience can lead to contempt proceedings.

When Each Remedy Is Available

A. Grounds and Availability of Preliminary Attachment (Rule 57)

A court does not grant attachment merely because the plaintiff fears non-payment. Attachment is allowed only in specific instances recognized by the Rules (in substance, the “enumerated grounds”), commonly including:

Action for recovery of a specified amount of money or damages on a cause of action arising from:
- Fraud, or
- Willful and deliberate acts.
Action against a party who is about to depart from the Philippines with intent to defraud creditors.
Action against a party who has disposed of, removed, or concealed property with intent to defraud creditors.
Action against a party who resides outside the Philippines (or is a non-resident) in certain circumstances, subject to jurisdictional requirements.
Action against a party whose property is being concealed or removed to frustrate enforcement.

Practical point: Fraud, intent to defraud, concealment, removal, or imminent flight are common anchors. The plaintiff must show that one of the recognized situations exists, not just that the defendant might lose money later.

B. Grounds and Availability of Preliminary Injunction (Rule 58)

A preliminary injunction may be granted when:

The applicant has a clear and unmistakable right that must be protected; and
There is a material and substantial invasion of that right; and
There is an urgent need for the writ to prevent serious damage or irreparable injury; and
The injunction is necessary to preserve the status quo or prevent the case from becoming moot or illusory.

Key ideas:

The right must be a right in esse, not a future expectation.
Injunction is generally not meant to create rights or decide the case in advance.
A mandatory preliminary injunction (ordering performance) requires a much stronger showing: clear right, extreme urgency, and that the status quo ante must be restored.

Evidence Required: Affidavit-Driven Attachment vs Hearing-Centered Injunction

Attachment: Verified Application + Affidavits Are Central

Attachment typically begins with:

A verified application (often within the complaint or by motion), and
Affidavits showing:
- a sufficient cause of action,
- a ground for attachment,
- that there is no other sufficient security,
- and the amount due (or value of property) above counterclaims.

Attachment can be sought ex parte (without prior notice) in many situations because delay can defeat the purpose (assets can disappear). But ex parte issuance comes with safeguards: bond, strict compliance, later opportunity to challenge and discharge.

Injunction: Notice and Hearing Are Usually Essential

For preliminary injunction:

Courts generally require notice and hearing before issuance.
A court may issue a Temporary Restraining Order (TRO) as an interim measure subject to strict limitations, but the preliminary injunction itself is typically hearing-based.
The applicant must prove the requisites through pleadings, affidavits, and often oral argument/evidence at hearing.

Bond Requirements: Both Require Bonds, but the Logic Differs

Attachment Bond

The applicant typically must post an attachment bond, meant to answer for damages the adverse party may suffer if the attachment is later found improper.

If attachment is wrongful or improper, the bond can be a source of recovery for damages.

Injunction Bond

The applicant must post an injunction bond, meant to answer for damages caused by the injunction if it is later determined that the applicant was not entitled to it.

Since injunction restrains conduct (and can cause business losses), the bond is critical.

Counterbond

Both remedies allow the adverse party to seek relief through a counterbond (e.g., to discharge attachment or dissolve injunction), subject to the court’s approval and the rules governing sufficiency.

How the Court Issues the Remedy

Attachment: Writ + Levy by Sheriff

Once granted, the court issues a writ of attachment; implementation involves:

Levy on real property (annotation/recording, depending on the registry system),
Seizure of personal property (taking into custody),
Garnishment (serving notice on banks, debtors, etc.).

The key is control or encumbrance of property, not merely a warning.

Injunction: Writ Served on Party; Enforcement by Contempt

The writ of injunction is served on the respondent; compliance is expected immediately upon service. Enforcement is through:

Contempt proceedings for disobedience,
Possible damages (including against bond),
Sometimes ancillary orders to ensure effectiveness.

Strategic Differences in Litigation

What Attachment Achieves Strategically

Gives plaintiff collection leverage.
Prevents defendant from becoming judgment-proof.
Signals serious allegations (often involving fraud/intent).
Can pressure settlement because it immediately affects assets and credit.

But it can also:

Trigger aggressive motions to dissolve/discharge,
Invite counterclaims for damages if wrongful,
Require careful targeting to avoid overreach.

What Injunction Achieves Strategically

Stops a threatened act (sale, demolition, eviction, publication, competition, transfer, construction, etc.).
Preserves status quo so the case is not rendered moot.
Protects rights where money damages are not adequate.

But it can also:

Be denied if the right is unclear,
Be attacked as an attempt to obtain “advance victory,”
Require continuous compliance and monitoring.

Common Use Cases (Illustrative)

Preliminary Attachment: Common Scenarios

Collection case where defendant is selling off assets to evade creditors.
Fraud-based damages case where defendant is transferring property to relatives or shell entities.
Defendant is about to leave the Philippines with intent to evade obligations.
Garnishment of bank deposits/receivables to secure satisfaction of potential judgment.

Preliminary Injunction: Common Scenarios

Preventing a party from selling or encumbering a disputed property pending determination of ownership/right.
Restraining unlawful acts that cause continuing harm (trespass, nuisance, interference with easement).
Preventing contract breaches that would cause irreparable harm (confidentiality, non-compete, unique goods).
Stopping implementation of an act that would render the case moot (e.g., contested corporate action), subject to limitations.

Key Doctrinal Distinctions

1) Right Protected

Attachment: Protects the plaintiff’s prospective ability to enforce a judgment (security).
Injunction: Protects an existing right from invasion (substantive protection).

2) Object of the Remedy

Attachment: Property of the adverse party is seized/encumbered.
Injunction: Conduct is restrained or compelled.

3) Standard of Entitlement

Attachment: Must show a specific ground and compliance with affidavit requirements; often anchored on fraud/intent/concealment/non-residence scenarios.
Injunction: Must show a clear right, irreparable injury, and necessity to preserve status quo.

4) Timing and Procedure

Attachment: Often ex parte at the outset (subject to challenge later).
Injunction: Generally requires notice and hearing; TRO may be interim.

5) Enforcement Mechanism

Attachment: Implemented by sheriff levy/garnishment.
Injunction: Enforced by contempt for noncompliance.

6) Consequences of Wrongful Issuance

Attachment: Defendant may seek damages against the attachment bond; possible reputational and liquidity harm.
Injunction: Respondent may seek damages against the injunction bond; losses from restrained operations can be substantial.

Temporary Restraining Order (TRO) vs Preliminary Injunction (Contextual Clarifier)

A TRO is not the same as a preliminary injunction. It is typically:

Short-term,
Issued to prevent immediate harm while the court conducts hearing for preliminary injunction,
Subject to strict duration limits and procedural safeguards.

In practice:

TRO is the stopgap;
Preliminary injunction is the mid-term restraint pending final judgment.

This matters because parties sometimes label requests as “injunction” but are procedurally seeking a TRO first.

How Defendants Commonly Challenge Each Remedy

Challenging Preliminary Attachment

Typical grounds include:

No valid statutory/rule ground exists.
Affidavit requirements were not properly complied with.
Plaintiff’s claim is not the type that supports attachment.
Levy was improper or excessive.
Attachment is unnecessary because there is sufficient security.
Filing a counterbond to discharge attachment.

Challenging Preliminary Injunction

Typical grounds include:

Applicant has no clear legal right.
Injury is compensable by damages; not irreparable.
Injunction would alter, not preserve, the status quo.
Applicant is seeking to pre-empt the merits (trial by injunction).
Injunction violates doctrines on non-interference, contractual stipulations, or special statutory limitations (where applicable).
Filing a counterbond and moving to dissolve.

Interplay: Can Both Be Sought in One Case?

Yes, in appropriate cases, a party may seek both, provided each remedy’s requisites are independently met.

Example pattern:

A plaintiff seeks injunction to stop a disputed transfer of property (conduct), and
Seeks attachment to secure a money claim arising from fraud (security).

However, courts are wary of overreach. Provisional remedies are not meant to become punitive or to provide a substitute for final relief.

Practical Guidance: Choosing the Correct Remedy

Choose preliminary attachment when:

The case is primarily about collecting money or damages, and
There is a credible risk that the defendant will frustrate execution by moving or hiding assets, and
A recognized ground exists (fraud/intent, concealment/removal, imminent flight, etc.).

Choose preliminary injunction when:

You need to stop or compel an act to prevent harm that cannot be adequately repaired by money, and
You can show a clear right needing protection and the necessity of preserving status quo.

If the real concern is “collection,” injunction is usually the wrong tool. If the real concern is “ongoing harm,” attachment is usually the wrong tool.

Comparative Summary Table

Feature	Preliminary Attachment (Rule 57)	Preliminary Injunction (Rule 58)
Primary function	Security for judgment	Prevent irreparable injury; preserve status quo
Protects	Prospective enforceability of judgment	Existing enforceable right
Operates on	Property (levy, seizure, garnishment)	Conduct (restrain/compel)
Typical relief	Sheriff attaches assets; garnishes credits	Court orders party to stop/do an act
Usual issuance	Often ex parte (with safeguards)	Usually with notice and hearing
Key proof	Enumerated ground + affidavits + amount due	Clear right + irreparable injury + status quo
Enforcement	Levy/garnishment by sheriff	Contempt for disobedience
Bond	Attachment bond	Injunction bond
Defendant’s relief	Motion to discharge; counterbond	Motion to dissolve; counterbond

Legal Risks and Ethical/Procedural Caution

Because these remedies can cause immediate and significant harm, Philippine courts treat them as extraordinary. Abuse or overstatement in applications can backfire through:

Dissolution/discharge of the remedy,
Damages against the bond,
Adverse credibility findings,
In extreme cases, sanctions for improper conduct.

For practitioners, the discipline is to match:

the remedy (property vs conduct),
the right being protected (security vs right in esse),
and the evidentiary and procedural route (affidavit-driven vs hearing-driven), to the actual litigation problem.

Bottom Line

Preliminary attachment is a property-securing remedy aimed at ensuring that a judgment—usually for money—will be collectible.
Preliminary injunction is a conduct-controlling remedy aimed at preventing irreparable harm and preserving status quo based on a clear existing right.

Understanding the distinction is not academic—it determines:

what you must prove,
how quickly you can obtain relief,
how the remedy is enforced,
what risks you assume through the bond,
and whether the court will view the application as legitimate protection or improper pressure.