[ULPIANUS libro tertio decimo ad edictum. ] §4.8.21.prQuid tamen si de pluribus controuersiis sumptus est nihil sibi communibus et de una sententiam dixit, de aliis nondum, numquid desiit esse arbiter? uideamus igitur, an in prima controuersia possit mutare sententiam, de qua iam dixerat.
[ULPIANUS in his thirteenth book on the Edict.] What however if he was chosen concerning several controversies having nothing in common with one another, and he has pronounced his award on one of them, but not yet on the others, has he ceased to be an arbitrator? Let us therefore see whether, in the first controversy about which he had already pronounced his award, he can change his award.
et multum interest, de omnibus simul ut dicat sententiam compromissum est, an non: nam si de omnibus, poterit mutare (nondum enim dixit sententiam): quod si et separatim, quasi plura sunt compromissa, et ideo quantum ad illam controuersiam pertinet, arbiter esse desierat.
And it makes a great difference whether it was agreed (by compromise) that he should pronounce his award on all of them at the same time, or not: for if it was on all of them, he will be able to change it (for he has not yet pronounced his award [as a whole]): but if also separately, it is as if there are several compromises, and therefore, as far as that controversy is concerned, he had ceased to be an arbitrator.
§4.8.21.1Si arbiter ita pronuntiasset nihil uideri Titium debere Seio: tametsi Seium non uetuisset petere, tamen si quid petisset, uideri contra sententiam arbitri fecisse: et id Ofilius et Trebatius responderunt.
If an arbitrator had pronounced thus: "that Titius appears to owe nothing to Seius", even though he had not forbidden Seius to make a claim, nevertheless, if Seius made any claim, he would be deemed to have acted contrary to the arbitrator's award; and this was the opinion (response) of Ofilius and Trebatius.
§4.8.21.2Solutioni diem posse arbitrum statuere puto: et ita et Trebatius uidetur sentire.
I think that the arbitrator can set a day for payment; and Trebatius also seems to be of this opinion.
§4.8.21.3Pomponius ait inutiliter arbitrum incertam sententiam dicere, ut puta: 'quantum ei debes redde': 'diuisioni uestrae stari placet': 'pro ea parte, quam creditoribus tuis soluisti, accipe'.
Pomponius says that an arbitrator pronounces an uncertain award ineffectively, as for example: "pay him as much as you owe him"; "it is resolved that your division should stand"; "receive in proportion to that part which you paid to your creditors".
§4.8.21.4Item si arbiter poenam ex compromisso peti uetuerit, in libro trigensimo tertio apud Pomponium scriptum habeo non ualere: et habet rationem, quia non de poena compromissum est.
Likewise, if an arbitrator forbids the penalty under the compromise to be demanded, I have it written in Pomponius's thirty-third book that this is invalid; and it is reasonable, because the compromise was not made regarding the penalty.
§4.8.21.5Papinianus libro tertio quaestionum ait, si cum dies compromissi finiretur, prolato die litigatores denuo in eum compromiserint nec secundi compromissi arbitrium receperit, non esse cogendum recipere, si ipse in mora non fuit, quo minus partibus suis fungeretur: quod si per eum factum est, aequissimum esse cogi eum a praetore sequens recipere.
Papinian says in his third book of Questions that, if when the term of the compromise was about to expire, the term having been extended, the litigants entered into a compromise anew on him, and he did not accept the arbitration of the second compromise, he ought not to be compelled to accept it, provided he himself was not in default (mora) in performing his duties; but if it was due to him, it is most equitable that he be compelled by the praetor to accept the subsequent one.
quae quaestio ita procedit, si nihil in priore compromisso de die proferendo caueatur: ceterum si cauebatur et ipse protulit, mansit arbiter.
This question arises only if nothing was provided in the prior compromise regarding the extension of the term; otherwise, if it was provided and he himself extended it, he remained the arbitrator.
§4.8.21.6Plenum compromissum appellatur, quod 'de rebus controuersiisue' compositum est: nam ad omnes controuersias pertinet.
A compromise is called "full" (plenum) when it is made "concerning matters or controversies", for it extends to all controversies.
sed si forte de una re sit disputatio, licet pleno compromisso actum sit, tamen ex ceteris causis actiones superesse: id enim uenit in compromissum, de quo actum est ut ueniret.
But if by chance there is a dispute concerning only one matter, although action was taken under a full compromise, nevertheless, actions arising from other causes survive; for that enters into the compromise which was agreed to enter into it.
sed est tutius, si quis de certa re compromissum facturus sit, de ea sola exprimere in compromisso.
But it is safer, if someone is going to make a compromise about a specific matter, to express that matter alone in the compromise.
§4.8.21.7Non debent autem obtemperare litigatores, si arbiter aliquid non honestum iusserit.
But the litigants ought not to obey if the arbitrator has ordered something dishonest (dishonorable).
§4.8.21.8Si intra diem compromissi aditus arbiter post diem compromissi adesse iusserit, poena non committetur.
If the arbitrator, having been approached within the term of the compromise, has ordered the parties to appear after the term of the compromise, the penalty will not be incurred.
§4.8.21.9Si quis ex litigatoribus ideo non adfuerit, quod ualetudine uel rei publicae causa absentia impeditus sit aut magistratu aut alia iusta de causa, poenam committi Proculus et Atilicinus aiunt: sed si paratus sit in eundem compromittere, actionem denegari aut exceptione tutum fore.
If one of the litigants did not appear because he was prevented by ill-health, or by absence on account of the state, or by a magistracy, or by some other just cause, Proculus and Atilicinus say that the penalty is incurred; but if he is ready to enter into a compromise on the same arbitrator, the action will be denied or he will be protected by an exception.
sed hoc ita demum uerum erit, si arbiter recipere in se arbiterium fuerit paratus: nam inuitum non esse cogendum Iulianus libro quarto digestorum recte scribit: ipse autem nihilo minus poena absoluitur.
But this will only be true if the arbitrator was ready to take the arbitration upon himself; for Julian rightly writes in his fourth book of Digests that one who is unwilling ought not to be compelled; he himself, however, is nonetheless released from the penalty.
§4.8.21.10Si arbiter iussit puta in prouincia adesse litigatores, cum Romae esset in eum compromissum, an ei impune non pareatur, quaeritur.
If an arbitrator has ordered the litigants to appear, say, in a province, when the compromise on him was made at Rome, it is asked whether he may be disobeyed with impunity.
et est uerius, quod Iulianus ait libro quarto, eum locum compromisso inesse, de quo actum sit ut promitteretur: impune igitur ei non parebitur, si alio loci adesse iusserit.
And that is more correct which Julian says in his fourth book, that that place is inherent in the compromise which was agreed to be promised; therefore, he will be disobeyed with impunity if he has ordered them to appear in another place.
quid ergo, si non appareat, de quo loco actum sit? melius dicetur eum locum contineri, ubi compromissum est.
What then if it does not appear which place was agreed upon? It will be better said that that place is contained where the compromise was made.
quid tamen si in eo loco, qui sit circa urbem, adesse iusserit? Pegasus admittit ualere iussum.
What however if he has ordered them to appear in a place which is around the city? Pegasus admits that the order is valid.
quod puto ita uerum esse, si et eius sit auctoritatis arbiter, ut in secessibus soleat agere, et litigatores facile eo loci uenire possint.
I think this is true only if the arbitrator is of such authority that he is accustomed to act in retreats (suburban villas), and the litigants can easily come to that place.
§4.8.21.11Sed si in aliquem locum inhonestum adesse iusserit, puta in popinam uel in lupanarium, ut Uiuianus ait, sine dubio impune ei non parebitur: quam sententiam et Celsus libro secundo digestorum probat.
But if he has ordered them to appear in some dishonest (disreputable) place, say, in a tavern or in a brothel, as Vivianus says, without doubt he will be disobeyed with impunity; and Celsus also approves this opinion in his second book of Digests.
unde eleganter tractat, si is sit locus, in quem alter ex litigatoribus honeste uenire non possit, alter possit, et is non uenerit, qui sine sua turpitudine eo uenire possit, is uenerit, qui inhoneste uenerat, an committatur poena compromissi an quasi opera non praebita.
Hence he elegantly discusses: if that is a place to which one of the litigants cannot honestly come, but the other can, and the one who could come there without his own disgrace did not come, while the one who had come in an dishonest manner did come, whether the penalty of the compromise is incurred, or whether it is as if assistance was not provided.
et recte putat non committi: absurdum enim esse iussum in alterius persona ratum esse, in alterius non.
And he rightly thinks that it is not incurred: for it is absurd that the order should be valid in the person of one, and not in the person of the other.
§4.8.21.12Intra quantum autem temporis, nisi detur quod arbiter iusserit, committatur stipulatio, uidendum est.
We must see within how much time, unless that which the arbitrator ordered is given (performed), the stipulation is incurred.
et si quidem dies adiectus non sit, Celsus scribit libro secundo digestorum inesse quoddam modicum tempus: quod ubi praeterierit, poena statim peti potest: et tamen, inquit, et si dederit ante acceptum iudicium, agi ex stipulatu non poterit:
And if indeed no day was added, Celsus writes in his second book of Digests that some moderate time is inherent; when this has passed, the penalty can be demanded immediately; and yet, he says, even if he has given (performed) before the acceptance of the trial, an action cannot be brought on the stipulation.