Paulus, On the Edict, Book XIII. For magistrates cannot be subject to coercion where they possess higher or equal authority; nor does it make any difference whether they accepted the office of arbiter during the term of their magistracy, or previously. Inferior officials, however, can be subjected to compulsion.

Paulus, On the Edict, Book XIII. But where the terms of the arbitration were, “that the award of either party alone should be valid”, then force can be brought to bear against Titius.

Paulus, On the Edict, Book XIII. Or to some other arbiter;

Ad Dig. 4,8,12ROHGE, Bd. 17 (1875), Nr. 55, S. 252: Schiedsvertrag abhängig von der Ernennung der Schiedsrichter durch einen Andern.Paulus, On the Edict, Book XIII. In this case, perhaps, the only reason for applying to the Prætor will be where the time appointed for the hearing can be prolonged, for then it may be done.

Paulus, On the Edict, Book XIII. Or where the arbiter is subjected to any other inconvenience after he has accepted the office. But in case of illness or other occurrences of this kind, he may be compelled to defer consideration of the matter, where proper cause is shown. 1An arbiter should be excused from acting where he is occupied in a case in his own behalf, whether it be either public or private; at all events, where the day of the hearing cannot be postponed; but if it can be, why should not the Prætor compel him to defer it as he has the right to do so, since this can sometimes be accomplished without any inconvenience to the arbiter? Where, however, both parties wish him to render an award, even though no bond was given for postponement; still, he cannot do otherwise, if he has an action of his own pending, unless he consents that the case may be submitted to him anew. This, of course, is dependent upon the fact that the time is about to expire.

Paulus, On the Edict, Book XIII. Labeo says that it does not concern the Prætor what kind of an award the arbiter makes, provided he states what his opinion is. Therefore, if the matter was referred to the arbiter to render some certain decision, this would be no arbitration; nor could he be compelled to make an award; as Julianus states in the Fourth Book of the Digest. 1Ad Dig. 4,8,19,1BOHGE, Bd. 2 (1871), S. 156: Gegenstand des Schiedsvertrages können auch künftige Rechtsverhältnisse sein. Bezeichnung der Person der Schiedsrichter.ROHGE, Bd. 3 (1872), S. 55: Gegenstand des Schiedsvertrages können auch künftige Rechtsverhältnisse sein. Bezeichnung der Person der Schiedsrichter.ROHGE, Bd. 7 (1873), S. 311: Der Schiedsrichter tritt an Stelle des Staatsgerichts, er wird gezwungen, der übernommenen Verpflichtung zu genügen, sein Spruch beendigt den Streit. Verwirklichung durch Klage und Execution.ROHGE, Bd. 7 (1873), S. 331: Gegenstand des Schiedsvertrages können auch künftige Rechtsverhältnisse sein. Bezeichnung der Person der Schiedsrichter.We must consider that an arbiter renders a decision, when he does so with the intention that the entire matter in controversy shall be settled. But where arbitration with reference to several matters is involved, unless he disposed of all that are in controversy, he will not be held to have made an award, and he can still be forced by the Prætor to act. 2For this reason it should be considered whether an arbiter can change his decision; and the question has even been raised where an arbiter orders property to be delivered, and subsequently forbids this to be done, whether what he ordered, or what he forbade should stand. Sabinus thinks that he can change his decision. Cassius sustains the opinion of his master, and says that Sabinus did not have in his mind a decision which put an end to the arbitration, but only one made during the preparation of the case; for example, where he ordered the litigants to appear on the kalends, and afterwards on the ides; for he had a right to change the day. Thus, if he rendered a decision against the defendant, or in his favor, then, as he would cease to be arbiter, he could not change his decision;

Paulus, On the Edict, Book XIII. Unless the plaintiff had some interest in the immediate payment of the money.

Paulus, On the Edict, Book XIII. But if he should afterwards be ready to receive it, I can not refuse to pay it with impunity, because I did not pay it before.

Paulus, On the Edict, Book XIII. So that it shall not be in the power of the sureties, who refuse to bind themselves again to cause the penalty to be executed. The same rule applies if they should die.

Paulus, On the Edict, Book XIII. It makes no difference whether the sum agreed upon as penalty is certain or uncertain; as, for example, where it was for, “As much as the property was worth”.

Paulus, On the Edict, Book XIII. When anyone brings a matter into court which it had been agreed to submit to arbitration, some authorities say that the Prætor cannot interpose to compel the arbiter to give an award, because now no penalty will be incurred, any more than if the arbitration had been dismissed. If, however, this opinion should be adopted, the result will be that where a party had agreed to arbitration, and changes his mind, he will be able to evade the reference of the case. Therefore, he can be sued for the penalty, and proceedings may be instituted in regular form before a judge.

Paulus, On the Edict, Book XIII. In matters submitted to arbitration we do not consider whether the stipulated penalty is greater or less than the property involved. 1An arbiter is not compelled to make an award where the penalty has been incurred. 2Ad Dig. 4,8,32,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 485, Note 11.Where a woman makes an agreement for arbitration in behalf of a third party, the proceeding for the collection of money will not be Valid on account of her appearance for another. 3The conclusion of the matter is: that the Prætor cannot interpose, either where there was no submission for arbitration in the beginning, or if there was, it is uncertain whether it is one for which a penalty may be exacted, or the penalty can no longer be recovered for the reason that the right of arbitration has been extinguished either by lapse of time, by death, by release, by a judicial decision, or by agreement. 4Where the arbiter is invested with a sacerdotal office, let us consider whether he can be compelled to make an award; for indulgence should be granted not only to the dignity of persons, but also to the majesty of God, whose ministers should only devote themselves exclusively to sacred affairs. Where, however, he assumed the office subsequently he should, under these circumstances, by all means render a decision. 5An arbiter should not be compelled to make an award after the matter in dispute has been compromised, or the slave who was the subject of the arbitration is dead; unless, in the last instance the parties still have some interest in the proceedings. 6Julianus stated ambiguously that if, through mistake, recourse was had to arbitration with reference to an offence involving infamy, or some matter which was liable to criminal prosecution, as, for instance, adultery, assassination, and other crimes of this kind; the Prætor should forbid an award to be made, and if it was made, should refuse to permit its execution. 7Where submission of a question of arbitration involving freedom is made, the arbiter cannot be compelled by law to render a decision; because the favor due to freedom requires that matters relating to it should be decided by judges of the highest rank. The same rule applies where the question involves either freedom of birth, or enfranchisement, and where it is stated that freedom should be conferred on account of a trust. The same must be said with respect to an action having reference to a breach of public order. 8Where one of the parties to a reference for arbitration is a slave, Octavenus says that the arbiter should not be compelled to render an award, and if he does so, that an exception cannot be granted for the penalty in an action De Peculio. But if the other party, being a freeman, makes an agreement with him, let us consider whether an exception should be granted against the freeman. The better opinion is that it should not be granted. 9Moreover, if anyone agrees to an arbitration at Rome, and, having departed, returns there as the member of an embassy, the arbiter is not compelled to give an award, any more than the party would be obliged to prosecute the case if he had previously joined issue; nor does it matter whether he was attached to an embassy in the first place, or not. But if he now submits the question to arbitration, I think that the arbiter can be compelled to make an award, because if the party voluntarily had joined issue in a suit at law he could be forced to proceed. Some authorities, however, are undecided with respect to this, but not properly so; as, at all events, they would entertain no doubts if the matter which the party consented to submit to arbitration while on an embassy was a contract which he entered into while under such employment; for the reason that he could be compelled in a matter of this kind to proceed with the trial. The question in the first instance is worthy of consideration, namely: whether if before the envoy agreed to arbitration, the arbiter could be compelled to render a decision if the envoy himself applied for it. And this, according to the first rule laid down, might seem to be unjust, because it was placed under the control of the party himself. This will come under the same rule, however, as if he wished to bring an action at law, which he had a right to do. An arbitration of this kind should be compared to an ordinary suit at law; so where the party is desirous for the arbiter to make an award, he will not be heard unless he sets up a defence. 10Where a person who had agreed to arbitration with some one who is dead, contests the succession to the estate, if the arbiter makes an award, the estate will be prejudiced; and therefore, in the meantime, the arbiter is prohibited from doing so. 11The time fixed for the arbitration may be extended, not by agreement of the parties, but by order of the arbiter, when it is necessary to extend it that liability for the penalty may not be incurred. 12If an arbiter attempts to conceal himself, the Prætor should cause him to be searched for, and if he does not appear for a long time, a fine should be imposed upon him. 13Ad Dig. 4,8,32,13ROHGE, Bd. 10 (1874), S. 311: Die Separatvota der Schiedsrichter stellen keinen Schiedsspruch dar.Where an agreement was made to submit a question to several arbiters, on condition that if any one of them should make an award the parties must abide by it; notwithstanding the other arbiters may be absent, a single arbiter who is present may be compelled to make the award. But where arbitration is agreed upon under the condition that all shall make the award, or that it must be sanctioned by a majority; each one cannot be compelled to render a decision separately, because in a case of this kind the decision of one arbiter will not give rise to liability for the penalty. 14Ad Dig. 4,8,32,14ROHGE, Bd. 4 (1872), S. 137: Einfluß des befürchteten Standesinteresses der Schiedsrichter auf Giltigkeit und Wirksamkeit des Schiedsspruchs.ROHGE, Bd. 7 (1873), S. 331: Einfluß des befürchteten Standesinteresses der Schiedsrichter auf Giltigkeit und Wirksamkeit des Schiedsspruchs.ROHGE, Bd. 8 (1873), S. 418: Einfluß des befürchteten Standesinteresses der Schiedsrichter auf Giltigkeit und Wirksamkeit des Schiedsspruchs.Where an arbiter is evidently an enemy to one of the parties for other reasons, and was called upon before witnesses not to give an award and he, nevertheless, insisted on doing so, although no one compelled him; the Emperor Antoninus, to whom application was made, replied to the complaint of the party that he was entitled to an exception on the ground of malicious fraud. The same Emperor, when his advice was asked by a judge before whom a party had brought suit for a penalty, answered that, although an appeal could not be taken, the suit for the penalty would be barred by an exception on the ground of malicious fraud; therefore, an exception of this kind is a species of appeal, as it affords an opportunity for a rehearing of the award of the arbiter. 15Ad Dig. 4,8,32,15BOHGE, Bd. 2 (1871), S. 156: Gegenstand des Schiedsvertrages können auch künftige Rechtsverhältnisse sein. Bezeichnung der Person der Schiedsrichter.ROHGE, Bd. 3 (1872), S. 55: Gegenstand des Schiedsvertrages können auch künftige Rechtsverhältnisse sein. Bezeichnung der Person der Schiedsrichter.ROHGE, Bd. 7 (1873), S. 331: Gegenstand des Schiedsvertrages können auch künftige Rechtsverhältnisse sein. Bezeichnung der Person der Schiedsrichter.In treating of the duties of an arbiter it must be remembered that the entire subject depends upon the terms of the agreement for arbitration, since the arbiter can lawfully perform no other act except what was provided that he should perform; and, therefore, he cannot decide anything he pleases, nor with reference to any matter that he pleases, but only what was set forth in the agreement for arbitration, and in compliance with the terms of the same. 16Ad Dig. 4,8,32,16ROHGE, Bd. 7 (1873), S. 311: Der Schiedsrichter tritt an Stelle des Staatsgerichts, er wird gezwungen, der übernommenen Verpflichtung zu genügen, sein Spruch beendigt den Streit. Verwirklichung durch Klage und Execution.Inquiry has been made as to making the award, and it has been stated that any kind of an award will not be valid; although with respect to certain matters a difference of opinion exists. I think, in fact, that the penalty cannot be exacted if the arbiter states that the party in a question of this kind should begin a new reference before a judge, or himself, or some other arbiter. Julianus holds that he may be disobeyed with impunity, if he orders the parties to appear before another arbiter; for if they do so, there will be no end to the case; but if he decided as follows, namely: that land should be delivered, or security furnished, with the approval of Publius Mævius, the award should be obeyed. Pedius, also, adopts this opinion to avoid the continuance of arbitration, and to prevent it from being sometimes transferred to other arbiters who are hostile to the parties; and it is necessary, for the arbiter to render his award in such a way as to put an end to the controversy, for it will not be terminated when arbitration is either postponed or transferred to another arbiter. He also says that the award is partly dependent upon the kind of security furnished, and the character of the sureties; and that this cannot be delegated, unless it was agreed that the arbiter should determine by whose arbitration security should be furnished. 17Moreover, if the arbiter orders someone to be associated with him, and this was not included in the agreement for arbitration, it is not held to be an award; for the award ought to have reference to the matter stated in the agreement, but no arrangement of this kind was made. 18Where two principals have stipulated with one another, and wish their agents to conduct the proceedings before the arbiter, he can order the principals also to be present. 19Where mention is made of an heir in the agreement for arbitration, the arbiter can order the heir also to be present. 20It is included in the duty of an arbiter to determine in what way free possession shall be delivered. Can he also order a bond to be furnished that the principal will ratify the acts of his agent? Sextus Pedius thinks that this is not reasonable, for, if the principal does not ratify the act, he can be sued on the stipulation. 21An arbiter can do nothing beyond what is stated in the agreement for arbitration; and, therefore, it is necessary to add that he shall have the right to extend the time fixed by the agreement; otherwise, his order may be disobeyed with impunity.

Paulus, On the Edict, Book XIII. Ad Dig. 4,8,34 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 295, Note 6.Where there are two joint debtors, or creditors, and one of them submits a question to arbitration, and the award forbids him to sue, or not to be sued, it should be considered whether a penalty will be incurred if one party sues, or is sued, by the other. The same question arises where there are two bankers who are joint creditors, and perhaps we might place them on the footing of sureties, if they are partners; otherwise, no action can be maintained against you, nor can I bring suit, nor can suit be brought in my name, even if it is brought against you. 1I am of the opinion that the arbitration is entirely at an end where the penalty has once been incurred; nor can it be again incurred unless the parties expressly agreed that liability for it should be incurred as many times as occasion arose.

Paulus, On the Edict, Book XIII. But the captain of the ship himself who assumed the risk, has a right of action on the ground of theft, unless he himself stole the property, and afterwards it was stolen from him, or someone else stole it, where the captain is not solvent. 1Where the captain of a ship received for safe-keeping the property of another captain; or the proprietor of a stable, that of another proprietor; or an inn-keeper that of another inn-keeper; they are all equally liable. 2Vivianus states that this Edict also has reference to such property as has been on board after the merchandise whose carriage was agreed upon has been loaded, even though nothing is due for its transportation, as for instance, clothing, or provisions for daily consumption; for the reason that these things are included as additions to those for which compensation has been paid.

Paulus, On the Edict, Book XIII. Moreover, if ten aurei are due, and the party promises to pay ten and deliver Stichus, it can be said that he is only liable for the ten aurei.

Paulus, On the Edict, Book XIII. If you steal a slave that has been leased to you, one of two actions is available against you: the action on lease, and the one for theft.

Paulus, On the Edict, Book XIII. Where an estate is transferred on account of a trust before an agreement for arbitration has been made with the heir, I think that the beneficiary of the trust should give the heir security, just as where the latter had charge of the property of the estate before transferring it, since the common saying that he can retain certain property does not universally apply; for what if there should be nothing in the estate which he is able to retain; as, for instance, where it all consists of notes, or articles of which he has not possession? It is clear that he to whom the estate is transferred will obtain everything, and the heir will be bound by the judgments in cases where he has been sued, or by the stipulations which he was required to enter into and could not avoid. Therefore he cannot be compelled to transfer the estate unless security is given him.

The Same, On the Edict, Book XIII. He who does not do what he should is considered to have violated his duty; and he who does what he ought not to do is understood not to do what was enjoined upon him.