Definition
A provisional remedy is a temporary legal remedy available to a party — typically a plaintiff — during the pendency of a civil action, before a final judgment is rendered. Its purpose is to preserve the status quo, protect the plaintiff against irreparable harm, prevent dissipation or concealment of assets, or secure the subject matter of the litigation so that any ultimate judgment will not be rendered meaningless.
Provisional remedies are procedural in nature: they do not resolve the underlying dispute, but rather hold the situation in place while the merits are litigated. They are sometimes called interlocutory remedies or ancillary remedies, though these terms carry distinct technical shades addressed below.
Common forms include:
- Attachment: seizure of a defendant's property to satisfy a potential future judgment
- Injunction (preliminary or temporary restraining order): court order preventing a party from taking specified action during litigation
- Receivership: appointment of a neutral party to manage property or assets pending resolution
- Garnishment: judicial process reaching property or funds held by a third party on behalf of the defendant
- Lis pendens: notice recorded against real property indicating that litigation affecting title is pending
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Common Confusion
PROVISIONAL REMEDY vs. INTERLOCUTORY REMEDY vs. ANCILLARY REMEDY: These terms overlap significantly and are often used interchangeably in older sources, but they are not identical. An interlocutory remedy is any relief granted during the pendency of an action, including orders that affect the merits; a provisional remedy is specifically temporary and preservative, not merits-resolving. An ancillary remedy is one that depends on and supports the main action — which describes provisional remedies well — but "ancillary" also describes other satellite proceedings not necessarily provisional in character. For research purposes, expect inconsistency in how courts and treatises deploy these terms, particularly in sources predating codified civil procedure.
PROVISIONAL REMEDY vs. PRELIMINARY INJUNCTION: A preliminary injunction is one type of provisional remedy. The two are not synonymous. Researchers who encounter "provisional remedy" in procedural codes should not read it as limited to injunctive relief; the category is broader.
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Recognized Forms
/SUBTYPES
The specific provisional remedies recognized in a given jurisdiction are typically defined by statute or court rule. The most consistently recognized forms across American jurisdictions are:
1. Attachment (pre-judgment)
2. Preliminary injunction
3. Temporary restraining order (TRO)
4. Receivership
5. Garnishment (pre-judgment)
6. Lis pendens (notice of pendency)
New York's Code of Civil Procedure gave "provisional remedy" formal statutory definition and grouped specific remedies under that heading — an influence traceable through the Rapalje & Lawrence entry and much of the 19th-century American procedural literature.
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Why It Matters in Research
The phrase "provisional remedy" functions differently depending on whether you encounter it in case law, a procedural code, or a treatise. In jurisdictions that adopted Field Code-derived procedure (New York and its followers), the term has a specific, defined statutory meaning with a closed list of qualifying remedies. In common law pleading jurisdictions and in equity practice, the same concept may appear without the term, described variously as interlocutory relief, ancillary process, or simply by the name of the specific remedy (e.g., injunction, attachment).
Researchers working in 19th-century sources should be alert to the fact that equity courts and law courts operated separate systems, and what one called a "provisional remedy" the other might call "interlocutory equitable relief." The fusion of law and equity under codes of procedure collapsed this distinction but did not immediately standardize terminology.
Jurisdiction matters acutely here. A case citing "provisional remedies" under the New York Code is using a term of art with specific procedural consequences — bond requirements, notice, grounds for issuance — that may not map directly onto a different state's practice even if that state uses the same label.
When tracing the availability of a provisional remedy in historical litigation, look for the underlying procedural vehicle (writ of attachment, bill of injunction, appointment of receiver) rather than the label "provisional remedy," which may not appear in older records at all.
The connection between provisional remedies and final remedies is also a research trap: a plaintiff who obtains attachment or a preliminary injunction has not won on the merits, and sources describing the grant of such relief should not be read as reflecting final adjudication.
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Historical Dictionary Support
The three shelf sources converge on the core definition without meaningful disagreement: a provisional remedy is one adapted to present need, temporary in nature, and designed to protect the plaintiff's position during litigation. Black's offers the most complete formulation, emphasizing protection against dissipation and irreparable injury. Bouvier's is briefest and largely mirrors Black's language. Rapalje & Lawrence is most operationally specific, grounding the term explicitly in the New York Code and characterizing provisional remedies as providing "temporary security" — language that reflects the procedural codification context in which American lawyers of the period most commonly encountered the phrase.
None of the three sources substantially addresses the relationship between provisional remedies and equitable jurisdiction, which was a live and contested question during the Field Code era. Treatise sources (notably Pomeroy on Equitable Remedies and Wait's Code Remedies) provide more nuanced treatment of how provisional relief operated across the law/equity divide. Researchers should not rely on the dictionary entries alone for that dimension of the topic.
The fragment appearing in the Black's entry referencing Archbishop Chichele and the reign of Edward IV appears to be a scanning artifact from an adjacent entry; it has no bearing on provisional remedies and should be disregarded.
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Jurisdictional Note
Jurisdictions that enacted Field Code-style procedural codes (New York, California, and many others during the mid-to-late 19th century) gave "provisional remedy" formal statutory content. Under the Federal Rules of Civil Procedure, the term does not appear as a defined category, though the individual remedies (preliminary injunction, TRO, attachment, receivership) are addressed separately. Researchers working with federal civil procedure should search by specific remedy type rather than the umbrella label.
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Encyclopedia Cross-Reference
remedies_72: Provisional Remedies — Attachment, Garnishment, Receivership, and Lis Pendens (The Law Mind Remedies & Equity Encyclopedia) [primary]
contracts_77: Remedies — Overview and Election of Remedies (The Law Mind Contracts & Commercial Law Encyclopedia)
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