The First Chamber of the Supreme Court of Justice established the criterion that although in our legal system the figure of the provision referral is not expressly contemplated in any legal text, it can be validly granted based on Article 109 of Law No. 834 of 1978, on the basis of urgency, which is characterized in those cases in which a delay may entail an irreparable damage to one of the parties or where there is an imperative need to protect a right.
To which said Chamber, in its judgment No. 1556-2021 dated June 30, 2021, approved with remittance the ordinance issued by the court a qua which ordered a provision in which a contestable obligation was manifest because it was a payment whose credit was conditioned to a sale.
According to the sentence, one of the indispensable requirements for the judge of the referrals to grant a provision in favor of the creditor, is the existence of an obligation containing a credit in favor of the claimant, which is not seriously contestable; in other words, that which is not disputed or objected by the party to whom it is intended to oppose, and that in addition, the applicant demonstrates the imperative need to receive the provision derived from a situation of urgency that prevents him from waiting for the generally slower course of the ordinary jurisdiction.
The decision was adopted by Judges Pilar Jiménez Ortiz, who presides over the Chamber; Judges Samuel Arias Arzeno and Vanessa Acosta Peralta, with the dissenting vote of Judges Justiniano Montero Montero and Napoleón R. Estévez Lavandier.
The judgment of reference contains a dissenting vote of justices Napoleón R. Estévez Lavandier and Justiniano Montero Montero, who argue that contrary to the majority position of the regulatory sense resulting from Article 110 of Law No. 834 of 1978, it is beyond any doubt that in the Dominican legal system, the institution of the referral provision is a reality. 834 of 1978, it is beyond any doubt that in the Dominican legal system, the institution of the provision referral is a prevailing reality, since said in its own context it is a modality of guarantee, as it is supported by the evolution developed in France, country of origin of an important part of our legislation, combined with the fact that in this matter prevails the role of transformation of the law and its adaptation in time, a vision that leads the judges in disagreement with the majority to argue that requiring urgency in this matter is simply to reduce to nothing the importance and effectiveness of the procedural figure addressed.
Access Ruling No.1556/2021 here.
