[ULPIANUS libro tertio decimo ad edictum. ] §4.8.17.prItem si unus ex litigatoribus bonis suis cedat, Iulianus libro quarto digestorum scribit non esse cogendum arbitrum sententiam dicere, cum neque agere neque conueniri possit.
[ULPIANUS in his thirteenth book on the Edict.] Likewise, if one of the litigants surrenders his property, Julian writes in the fourth book of his Digests that the arbitrator is not to be compelled to give an award, since that party can neither sue nor be sued.
§4.8.17.1Si multo post reuertantur ad arbitrum litigatores, non esse cogendum sententiam dicere Labeo scribit.
If the litigants return to the arbitrator long afterwards, Labeo writes that he is not to be compelled to give an award.
§4.8.17.2Item si plures sunt qui arbitrium receperunt, nemo unus cogendus erit sententiam dicere, sed aut omnes aut nullus.
Likewise, if there are several who have undertaken the arbitration, no single one of them shall be compelled to give an award, but either all of them or none.
§4.8.17.3Inde Pomponius libro trigensimo tertio quaerit, si ita sit compromissum, ut quod Titio disceptatori placet, id Seius pronuntiet, quis sit cogendus? et puto tale arbitrium non ualere, in quo libera facultas arbitri sententiae non est futura.
Hence Pomponius asks in his thirty-third book, if a submission to arbitration was made in such terms that Seius should declare what pleases Titius as referee, who is to be compelled? And I think that such an arbitration is not valid, in which there will be no free capacity of the arbitrator for an award.
§4.8.17.4Sed si ita sit compromissum arbitratu Titii aut Seii fieri, Pomponius scribit et nos putamus compromissum ualere: sed is erit cogendus sententiam dicere, in quem litigatores consenserint.
But if the submission to arbitration was made in such terms that it should be done by the arbitration of Titius or Seius, Pomponius writes, and we think, that the submission is valid; but he shall be compelled to give an award upon whom the litigants have agreed.
§4.8.17.5Si in duos fuerit sic compromissum, ut si dissentirent, tertium adsumant, puto tale compromissum non ualere: nam in adsumendo possunt dissentire.
If a submission to arbitration has been made to two persons in such terms that, if they disagree, they should associate a third, I think that such a submission is not valid; for they may disagree in associating him.
sed si ita sit, ut eis tertius adsumeretur Sempronius, ualet compromissum, quoniam in adsumendo dissentire non possunt.
But if it is in such terms that Sempronius should be associated with them as a third, the submission is valid, since they cannot disagree in associating him.
§4.8.17.6Principaliter tamen quaeramus, si in duos arbitros sit compromissum, an cogere eos practor debeat sententiam dicere, quia res fere sine exitu futura est propter naturalem hominum ad dissentiendum facilitatem.
Nevertheless, let us inquire as a principal question whether, if a submission to arbitration is made to two arbitrators, the praetor ought to compel them to give an award, since the matter is likely to turn out almost without a result because of the natural tendency of men to disagree.
in impari enim numero idcirco compromissum admittitur, non quoniam consentire omnes facile est, sed quia et si dissentiant, inuenitur pars maior, cuius arbitrio stabitur.
For a submission to arbitration is allowed with an odd number for this reason, not because it is easy for all to agree, but because, even if they disagree, a majority is found whose decision shall stand.
sed usitatum est etiam in duos compromitti, et debet praetor cogere arbitros, si non consentiant, tertiam certam eligere personam, cuius auctoritati pareatur.
But it is also customary for a submission to be made to two, and the praetor ought to compel the arbitrators, if they do not agree, to choose a certain third person whose authority shall be obeyed.
§4.8.17.7Celsus libro secundo digestorum scribit, si in tres fuerit compromissum, sufficere quidem duorum consensum, sed si praesens fuerit et tertius: alioquin absente eo licet duo consentiant, arbitrium non ualere, quia in plures fuit compromissum et potuit praesentia eius trahere eos in eius sententiam:
Celsus writes in the second book of his Digests that, if a submission has been made to three, the agreement of two indeed suffices, but only if the third was also present; otherwise, in his absence, even if two agree, the arbitration is not valid, because the submission was made to several, and his presence could have drawn them to his opinion.