Short answer
What is often called a precautionary attachment (embargo precautorio) is, in Mexican commercial litigation, the retention of assets: an order, before or during the lawsuit, that keeps the debtor from hiding, selling or spending the assets that could pay the debt. It requires a liquid, due claim and a well-founded fear that the assets will disappear. The applicant posts a bond and, if it was requested before suing, must file the main lawsuit within three days (Commerce Code arts. 1168-1182).
The two measures available
Article 1168 of the Commerce Code allows only two precautionary measures in commercial cases:
- Radicación de persona: where there is a well-founded fear that the debtor will leave or hide; its effect is limited to requiring a representative with instructions and funds to answer the claim (art. 1173).
- Retention of assets: where there is a well-founded fear that collateral or assets subject to the claim will be disposed of, hidden or become insufficient; or, in personal actions such as debt collection, where the debtor has no other assets and the same fear exists.
For cash, bank deposits and fungible assets, the risk is presumed unless the debtor secures the debt (art. 1168, sec. II). For registrable assets such as real estate, the court orders an annotation in the public registry.
What the court requires
Under article 1175 the applicant must: prove a liquid and due claim; state the amount claimed; explain under oath why it fears the assets will be hidden or disposed of; in personal actions, state under oath that the debtor has no other known assets (except for cash or deposits); and post security for the damages the measure may cause.
Timing and the debtor's response
| Step | Rule | Article |
|---|---|---|
| Before or during the lawsuit | Before: granted without hearing the debtor. During: separate incidental proceeding. | 1177, 1178 |
| Filing the main lawsuit | Within 3 days (plus distance days), proved within 3 more days | 1181 |
| Failure to file | Measure revoked on the court's own motion | 1182 |
| Lifting the measure | Debtor deposits the amount, posts a bond or offers sufficient real estate | 1179 |
| Appeal and changes | Appeal; modification or revocation for new facts | 1183 |
| Third-party assets | Third parties may challenge | 1184 |
If the debt is documented in an executory instrument such as a pagaré, the executory lawsuit already allows attachment on admission (arts. 1391-1392), so a prior measure is often unnecessary. Retention is most useful for invoices or contracts that must be proven at trial.
Step by step
- Gather evidence of the debt: contract, invoices, orders, deliveries, statements.
- Document the risk: closure notices, asset sales, changes of address.
- Identify specific assets: accounts, real estate, vehicles, inventory, receivables.
- Prepare the application and the main lawsuit at the same time.
- Post the security set by the court.
- File the lawsuit within the deadline and prove it to the court.
Frequently asked questions
Is the debtor notified before the assets are frozen?
If requested before filing suit, the court grants it without hearing the debtor (Commerce Code arts. 1177-1178). The debtor learns of it when it is executed.
Can bank accounts be frozen?
Yes. For cash, bank deposits and other fungible assets, the law presumes the risk that they will be disposed of, unless the debtor secures the debt (art. 1168, sec. II).
Do I have to post a bond?
Yes. The applicant must secure the damages the measure may cause; the court sets a prudent amount (art. 1175).
How long do I have to file the lawsuit afterwards?
Three days if the case will be heard in the same place, plus distance days otherwise, and you must prove the filing within the following three days (art. 1181). Otherwise the measure is revoked on the court's own motion (art. 1182).
Does it guarantee recovery?
No. It secures assets while the case runs; the result depends on the evidence and the judgment.
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