[ULPIANUS libro tertio decimo ad edictum. ] §4.8.23.prCelsus ait, si arbiter intra kalendas Septembres dari iusserit nec datum erit, licet postea offeratur, attamen semel commissam poenam compromissi non euanescere, quoniam semper uerum est intra kalendas datum non esse: sin autem oblatum accepit, poenam petere non potest doli exceptione remouendus.
[ULPIANUS in his thirteenth book on the Edict.] Celsus says that if an arbiter has ordered performance to be made by the first of September, and it is not made, although it is offered afterwards, nevertheless the penalty of the submission, once incurred, does not vanish, since it is always true that performance was not made by the first of September. But if he has accepted what was offered, he cannot claim the penalty, as he must be barred by the defense of fraud.
contra, ubi dumtaxat dare iussus est.
It is otherwise where he was merely ordered to perform.
§4.8.23.1Idem ait, si iusserit me tibi dare et ualetudine sis impeditus, quo minus accipias, aut alia iusta ex causa, Proculum existimare poenam non committi, nec si post kalendas te parato accipere non dem.
The same writer says that if the arbiter has ordered me to give something to you, and you are prevented by ill health from receiving it, or for some other just cause, Proculus thinks that the penalty is not incurred, nor even if, after the first of the month, when you are ready to receive it, I do not give it.
sed ipse recte putat duo esse arbitri praecepta, unum pecuniam dari, aliud intra kalendas dari: licet igitur in poenam non committas, quod intra calendas non dederis, quoniam per te non stetit, tamen committis in eam partem, quod non das.
But he himself rightly thinks that there are two orders of the arbiter: one that the money be paid, and the other that it be paid by the first of the month. Therefore, although you do not incur the penalty for not having given it by the first of the month, since it was not your fault, nevertheless you incur it in respect of not giving it.
§4.8.23.2Idem ait nihil aliud esse sententiae stare posse, quam id agere, quantum in ipso sit, ut arbitri pareatur sententiae.
The same writer says that to be able to abide by the award is nothing other than to do as much as lies in one's power to ensure that the award of the arbiter is obeyed.
§4.8.23.3Idem Celsus ait, si arbiter me tibi certa die pecuniam dare iusserit, tu accipere noluisti, posse defendi ipso iure poenam non committi.
The same Celsus says that if the arbiter has ordered me to pay you money on a certain day, and you refused to accept it, it can be maintained that the penalty is not incurred by operation of law.