Las Margaritas representative admits immediate dividend rights and embargoes blocking payment to Lisa
Oct 23 2024
14th Civil Court
On October 23, 2024, the Fourteenth Multi-Judge First Instance Civil Court conducted a party interrogation of the representative of Avícola Las Margaritas, S.A. in the summary extinctive prescription proceeding brought against Lisa, S.A. The hearing, requested by Lisa as the articulating party, produced significant admissions regarding dividend rights, the existence of embargoes on Lisa's shareholder interest, and the corporate succession between Compañía Alimenticia de Centroamérica, S.A. and Avícola Las Margaritas, S.A.
Avícola Las Margaritas, S.A. (successor by merger of Compañía Alimenticia de Centroamérica, S.A.) filed a summary extinctive prescription action against Lisa, S.A. in Proceeding No. 01164-2022-01230, seeking a declaration that the obligation to pay dividends decreed by the General Shareholders' Meeting of November 17, 2016, was time-barred. Lisa, S.A. raised the preliminary exception of failure of condition, which the same court sustained in the order of July 10, 2023, rejecting the prescription claim on the ground that active embargoes on Lisa's dividends prevented the prescriptive period from running.
At the outset of the hearing, Lisa's attorney clarified that the only entity that could serve as the absolvente (responding party) was Avícola Las Margaritas, S.A., because Compañía Alimenticia de Centroamérica, S.A. ceased to exist upon being absorbed by merger in 2020. The court confirmed that, under Article 247 of the Commercial Code, Avícola Las Margaritas, having absorbed Compañía Alimenticia de Centroamérica, acquired the responsibilities of the absorbed entity, and its representative was authorized and required by law to respond to the interrogation directed at the extinct company.
Of the sixteen positions submitted in the sealed envelope, the court disqualified five (positions 1, 4, 5, 14, and 15) as suggestive, negative, matters of law, or imprecise. The responses to the admitted positions revealed:
On dividends. The absolvente acknowledged that clause thirteen of the articles of incorporation establishes shareholders' right to collect dividends, and that if the administration fails to set the date and form of payment, the shareholder has the right to collect immediately (position 2). He further confirmed that the administration did in fact decree dividends (position 3).
On embargoes. The absolvente admitted the existence of precautionary measures affecting assets related to the company (positions 6 and 7), confirmed that embargoes were recorded though he could not recall specific folio or book numbers (positions 8 and 9), and acknowledged that various measures appear annotated on Lisa's shareholder registration folio, though he stated he had no information about whether they remained in force (position 10). He denied knowledge of embargo annotations on the reverse of Lisa's shareholder folio (positions 11, 12, and 13).
On prescription. The absolvente stated that more than five years had elapsed between the date of the demand letter and the filing of the lawsuit, which in his view gave rise to prescription (position 16).
The admissions by the representative of Avícola Las Margaritas strengthen Lisa's position on two central points. First, the acknowledgment of an immediate right to dividends when the administration fails to set a payment date and method establishes that the obligation was enforceable, contradicting any argument that Lisa was required to await administrative action that never came. Second, the confirmation of embargoes recorded on Lisa's shareholder folio supports the argument that prescription could not run while judicial measures, many obtained by Avícola Group entities themselves, prevented payment.
The absolvente's assertion regarding prescription (position 16) constitutes a legal conclusion, not a binding factual admission, because the computation of the prescriptive period depends on factors the absolvente himself acknowledged: the existence of embargoes that blocked performance.
Lisa, S.A. filed an opposition to the prescription action on October 28, 2025, requesting that the claim be denied and that Avícola Las Margaritas, S.A. be ordered to pay costs for acting in bad faith.