Peru - Attachment of Assets
Jorge Velarde, Rodrigo, Elias & Medrano
Luis Bedoya, Rodrigo, Elias & Medrano
Originally from Attachment of Assets
1. What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained (attachments)? Freezing property in place? Placing it in the custody of a third party, such as a court official, sheriff or marshall?
Under Peruvian law, “attachments” have the general nature of precautionary measures ordered by the Judiciary. By means of a preventive action a judge grants the plaintiff a precautionary measure, before or during the process, in order to assure the execution of the judge’s final decision. All the actions related to obtain this measure are part of an autonomous process. It is important to mention that a decision granting a precautionary measure may be modified at any moment by the judge who ordered it, whenever he changes his opinion on the likelihood of the plaintiff’s right.
Precautionary measures are mainly of two types: garnishments (embargo) and seizures (secuestro).
(i) Garnishments shall be imposed in the event the plaintiff’s claim is measurable in money. It is a legal charge over a defendant’s right or property, by which said right or property collaterally guarantees the possible existence of the right being discussed in the process.
(ii) Seizures are ordered when the purpose of the process is to find out who the legal owner of a certain personal or real estate is, although it can also secure payment ordered by a judge within an executive proceeding.
In both cases, these measures may order to place the property in the custody of a third party appointed by the judge.