Court dismisses Avícola Las Margaritas' prescription claim, finding embargoes on Lisa's dividends prevent time-bar
Jul 10 2023
14th Civil Court
The Fourteenth Multi-Judge Civil Court of First Instance, in a ruling dated July 10, 2023, upheld the preliminary exception of failure of condition raised by Lisa, S.A. and dismissed the summary action for extinctive prescription filed by Avícola Las Margaritas, S.A. (successor by merger of Compañía Alimenticia de Centroamérica, S.A.). The court concluded that Lisa's dividends were subject to multiple precautionary embargoes, several obtained by the same Avícola entities, which constituted a suspensive condition that prevented both payment and the running of the prescription period.
Avícola Las Margaritas, S.A., as successor by merger of Compañía Alimenticia de Centroamérica, S.A., filed a summary action for extinctive prescription against Lisa, S.A., seeking a declaration that the obligation to pay dividends decreed by the Annual General Shareholders' Meeting of Compañía Alimenticia de Centroamérica, S.A., held on November 17, 2016, was time-barred. That meeting approved, in its fifth agenda item, the distribution of remaining profits from the fiscal year January 1 through December 31, 2015. Lisa, S.A. is a shareholder of Avícola Las Margaritas, S.A.
Avícola Las Margaritas, S.A. sought a judicial declaration that Lisa, S.A.'s right to collect the dividends decreed at the November 17, 2016, meeting had prescribed.
Lisa, S.A., through its special judicial representative Paola Arana Estrada, raised the preliminary exception of failure to satisfy the condition to which the asserted right is subject (Article 116(7) of the Code of Civil and Commercial Procedure). The central argument was that Lisa's dividends were frozen by six precautionary embargoes in force across multiple civil courts, which legally prevented the debtor from making any payment:
All of these embargoes attached to any sums corresponding to dividends, profits, or liquidation proceeds payable to Lisa, S.A. The earliest embargo had been in force since 2000, meaning that by the time the shareholders' meetings decreed dividend distributions, those funds were already under judicial seizure. Lisa, S.A. stated that it requested payment of its dividends on October 31, 2018, and that Compañía Alimenticia de Centroamérica, S.A. and Avícola Las Margaritas, S.A. responded by letter dated November 8, 2018, stating they could not pay because of existing judicial embargoes. Lisa highlighted the fundamental contradiction: the embargo orders were obtained by the same entity that bore the payment obligation.
Plaintiff's response to the exception. Avícola Las Margaritas, S.A. argued that the existence of embargoes did not constitute the failure-of-condition exception, citing the treatise writer Mario Efraín Nájera Farfán on the premise that the exception under Article 116(7) of the CPCYM is grounded in substantive law, and that the defendant had not developed any legal theory as to why the embargoes constituted a suspensive condition.
The court distinguished two scenarios under Article 116(7) of the CPCYM: failure to satisfy a time condition and failure to satisfy a condition, determining that the present case fell under the second.
On the existence of the embargoes. The court held the existence of the embargoes as proven, because the plaintiff itself acknowledged them when arguing that "the existence of embargoes on sums corresponding to dividends that might belong to LISA, S.A. does not constitute the exception." The court applied the iura novit curia principle and, given the commercial nature of the dispute, invoked Article 669 of the Commercial Code on the principles of verdad sabida y buena fe guardada (known truth and good faith).
On the suspensive condition. The court determined that a corporate contract existed giving rise to the right to collect and the obligation to pay dividends, and that the obligation originated in the corporate charter. It applied Article 1388 of the Civil Code: an obligation is not extinguished when the debtor pays its creditor after being judicially notified not to do so. From this provision, the court derived, a contrario sensu, that the suspensive condition alleged by Lisa was established by operation of law. Article 1423 of the Civil Code established a presumption of fault on the debtor for non-compliance, and in this case the failure to pay dividends resulted from embargoes obtained by the plaintiff itself against the creditor.
On good faith. The court concluded that the plaintiff failed to meet the standard of procedural probidad, citing Eduardo Couture. The entity that obtained the embargoes preventing payment then sought to benefit from prescription based on the passage of time during which it had itself prevented collection. The court observed that, acting in good faith, the debtor could have consigned the amount owed under Article 1409(5) of the Civil Code, which allows consignment when the debt is embargoed or retained in the debtor's possession. Having failed to do so, prescription could not run while the precautionary measures remained in force.
Lisa, S.A. did not submit evidence during the evidentiary period, so the court could not evaluate proof that did not comply with the procedural requirements. However, the plaintiff's documentary evidence was assessed as follows:
The accounting certification was particularly significant: it confirmed that Compañía Alimenticia de Centroamérica, S.A.'s own records recognized the existence of a payable account to Lisa for the decreed dividends.
On October 23, 2024, the court held a party testimony hearing with Avícola Las Margaritas, S.A., in which the plaintiff's representative acknowledged that shareholders had immediate rights to dividends, confirmed the existence of embargoes recorded in the shareholder registry, and admitted that the embargoes had prevented payment. On October 28, 2025, Lisa, S.A. filed a brief opposing the prescription claim, requesting that the action be dismissed, all peremptory defenses upheld, and costs imposed on the plaintiff for acting in bad faith.