Lisa seeks dismissal of cassation challenging dividend prescription denial
Jul 3 2025
Lisa, S.A.
Lisa, S.A., through its special judicial representative Rossana Mishelle Ramírez Paredes, files its defense plea for the hearing scheduled for July 4, 2025 before the Civil Chamber of the Supreme Court of Justice, requesting that the cassation appeal filed by Avícola Las Margaritas, S.A. against the November 4, 2024 ruling of the First Civil and Commercial Court of Appeals be dismissed. The plea argues that the Court of Appeals correctly analyzed the applicable legal framework in concluding that the dividend payment obligation was not immediately enforceable, which prevents computation of the prescription period invoked by the appellant.
Avícola Las Margaritas, S.A., as successor by merger of Importadora de Alimentos de Guatemala, S.A., filed a summary extinctive prescription action against Lisa, S.A. seeking a declaration that the obligation to pay dividends decreed at the June 10, 2014 Annual Ordinary General Shareholders' Meeting was extinguished by prescription. Lisa filed a negative answer and raised peremptory exceptions based on lack of truthfulness in the plaintiff's allegations, absence of legal prerequisites for prescription, lack of free disposition over the dividends, violation of third-party rights through precautionary measures, and interruption of prescription through judicial and extrajudicial actions.
The first-instance ruling of June 11, 2024 dismissed the prescription claim and upheld all of Lisa's peremptory exceptions, including those grounded in the existence of active precautionary embargoes on Lisa's dividends and shares that prevented both payment and collection. Costs were imposed on the losing party.
The appellate ruling of November 4, 2024 partially granted Avícola Las Margaritas' appeal but confirmed the dismissal of the prescription action. The Court of Appeals upheld Lisa's negative answer and the exception for lack of truthfulness, but reversed the exceptions relating to lack of free disposition, precautionary measures, and interruption of prescription, holding that embargoes do not by themselves constitute a legal impediment to prescription.
Avícola Las Margaritas filed a cassation appeal on substantive grounds alleging violation of law through non-application of Article 675 of the Commercial Code and misapplication of Articles 3 of the Judiciary Act and Articles 132 and 669 of the Commercial Code.
Lisa argues that the Court of Appeals did consider Article 675 of the Commercial Code (which provides that commercial obligations without a set term are immediately enforceable) but correctly determined it was inapplicable to the case. The shareholders' meeting of June 10, 2014, in approving the distribution of profits, expressly authorized the administration to make payment "in the form and when it deems convenient." This clause transformed the payment obligation from a simple and unconditional obligation into a conditional one, subject to a future act by the board of directors.
Lisa invokes Clause Sixteen of the articles of incorporation of Importadora de Alimentos de Guatemala, S.A., which assigns to the board of directors the authority to "determine the date and form of payment of agreed profits." No evidence exists in the record that the board of directors ever fulfilled this function, that is, that it ever communicated to shareholders the form and date of payment. Without fulfillment of this suspensive condition, the obligation cannot be considered enforceable, and the five-year prescription period under Article 1508 of the Civil Code cannot begin to run.
Lisa further identifies a contradiction in the plaintiff's position: the complaint asserts that dividends were enforceable the day after the shareholders' meeting under Article 675, but if that argument were correct, the period would begin running on the same day as the meeting, not the following day, exposing the plaintiff's imprecision in determining the starting point of prescription.
Lisa maintains that Article 132 of the Commercial Code recognizes the General Assembly as the supreme corporate body, but its supremacy is limited to matters attributed to it by law and the bylaws. The Assembly cannot directly exercise functions assigned to the board of directors. In this case, the Assembly itself expressly subordinated the enforceability of payment to a subsequent decision by the administration, which precludes application of Article 675.
Regarding Article 669 of the Commercial Code (principles of verdad sabida and good faith), Lisa argues that Article 147 of the Judiciary Act requires court rulings to set forth the doctrines and principles applicable to the case. Since the dispute arises from commercial transactions, applying these principles is mandatory. Seeking to overturn a judgment for applying the principles that govern the relationship submitted to the courts is itself violative of the principles of effective judicial protection and due process.
Lisa contends that the dividend payment obligation ceased to be simple and unconditional and became a conditional obligation under Article 1592 of the Civil Code. The condition is suspensive under Article 1269 of the Civil Code: the acquisition of rights depends on the condition. Without fulfillment of the condition (the board's determination of the payment date and form), the creditor has no enforceable rights nor claimable obligations, and no prescription period runs.
The Civil Chamber of the Supreme Court of Justice resolved the cassation appeal on October 7, 2025, dismissing it in its entirety and confirming the ruling of the First Civil and Commercial Court of Appeals. The Court imposed costs and a statutory fine on Avícola Las Margaritas, S.A., definitively consolidating Lisa's victory in the cassation ruling of October 7, 2025.