Ulpianus, On the Edict, Book XIII. Complete restitution may be granted to the successors of minors, as well as to the successors of those who are absent on public business, and, in fact, of all those who were themselves entitled to complete restitution; and this has very frequently been decided. Therefore, an heir, or a person to whom an estate has been delivered, or the successor of the son of a family who was a soldier, can obtain complete restitution. Hence if a minor of either sex is reduced to slavery, complete restitution will be granted to his or her master, within the time prescribed by law. But if it should happen that such a minor was overreached with reference to an estate which he had entered upon, Julianus says, in the Seventeenth Book of the Digest, that his master will have the right to reject it, not only on the ground of youth, but even where youth cannot be alleged; because patrons have used the benefit of the laws not for the sake of obtaining an estate, but for the purpose of revenge.

The Same, On the Edict, Book XIII. Sometimes, however, we grant a successor a longer time than a year to begin proceedings, as is stated in the Edict, if his age should give occasion for it; for, after his twenty-fifth year, he will be entitled to the time granted by law; as, in this instance, he is held to have been deceived since he could have obtained restitution within the time allowed with respect to the deceased, but did not make application for it. It is clear that if the deceased had only a small portion of the available time remaining in which to obtain complete restitution, his heir, if a minor, will be granted time to obtain it after the completion of his twenty-fifth year, not the entire term prescribed, but only so much as the minor, who was his heir, was entitled to.

Ulpianus, On the Edict, Book XIII. Or anyone who will probably annoy the adversary.

Ulpianus, On the Edict, Book XIII. The same Edict also applies where the property has been acquired through usucaption by the party to whom it was transferred, so that no suit could be brought to recover it from him. 1It can also happen that possession is terminated without bad faith, but that this was done for the purpose of altering the conditions of the trial, and there are numerous other cases of this kind. On the other hand, a party may fraudulently relinquish possession, and he may not have acted for the purpose of changing the conditions of the suit; and then he will not be liable under the terms of this Edict, for he does not alienate property, who merely relinquishes possession. The Prætor, however, does not disapprove the act of a party who was so desirous to give up property to prevent his being constantly engaged in litigation on account of it; and this is, in fact, a very modest determination of one who detests lawsuits, and is not to be blamed; but the Prætor only concerns himself with a party who, while desiring to retain the property, transfers his part in the case to another, so that the latter, instead of himself may give his adversary trouble. 2Pedius states in the Ninth Book, that this Edict has not only reference to a transfer of ownership, but also a transfer of possession; otherwise, he says that where the plaintiff brings a suit in rem, and the defendant relinquishes possession, he will not be liable. 3Where, however, anyone through illness, old age, or necessary business, transfers his right of action to another, this is not a case in which he is liable under this Edict, as mention of fraud is made in the Edict; for, otherwise, it would be forbidden to litigate through agents, as ownership is generally transferred to them where proper cause exists for this to be done. 4This Edict also has reference to real servitudes, where their alienation is fraudulently made. 5This action has for its object the amount of the plaintiff’s interest; and therefore, if the property did not belong to him, or if the slave who was alienated should die without the fault of the party who alienated him, the action will not lie, unless there was some additional interest of the plaintiff. 6This action is not a penal one, but it is for the purpose of recovering property by order of court for which reason it is granted to an heir, and also against an heir,

Ulpianus, On the Edict, Book XIII. Or after a year it is not granted.

The Same, On the Edict, Book XIII. Labeo says that where an award is given under an arbitration, by which a party is released from an action on guardianship by a minor under twenty-five years of age, it should not be confirmed by the Prætor; nor will an action for the recovery of the penalty on account of it be granted. 1Although the Prætor does not compel anyone to undertake an arbitration (since this is voluntary and depends upon the exercise of the will, and is outside his jurisdiction), nevertheless, where a party has once assumed the duties of the office, the Prætor thinks that the matter requires his care and attention; not so much because it is his object that legal controversies should be terminated, but in order that persons should not be disappointed who have selected someone to decide between them who was considered to be a reliable man. For, suppose that after the case had been examined one or more times, and the private concerns of both parties had been made public, and the secrets of the business had been disclosed, the arbiter should refuse to give an award; either for the purpose of showing partiality, or because he had been corrupted by bribery, or for some other reason; could anyone deny that it was not perfectly right that the Prætor should intervene in order to compel the arbiter to discharge the duties of the office which he had assumed? 2The Prætor says: “A party who undertakes arbitration by which submission is made to his award under a pecuniary penalty.” 3Let us first consider the personality of the arbiters. The Prætor can compel an arbiter, no matter what his rank may be, to perform the duties of the office which he has undertaken, even though he be of consular rank, unless he holds some magisterial position, or is invested with other authority; as, for instance, that of Consul, or Prætor, since he then has no jurisdiction;

Ulpianus, On the Edict, Book XIII. The son of a family can also be compelled to act.

Ulpianus, On the Edict, Book XIII. Pedius says in the Ninth Book, and Pomponius in the Thirty-third Book, that it is of little importance whether a party who was appointed arbiter is free born, or a freedman of good reputation, or has been branded with infamy. Labeo says that a slave cannot act as arbiter, and this opinion is correct. 1Therefore Julianus states that where a question for arbitration is referred to Titius and a slave, Titius cannot be forced to give an award, because he undertook the arbitration with another; although he states that there is no arbitration by a slave. What then would be the result if Titius should give an award? In this instance the penalty would not be payable, because he did not render the award in compliance with the conditions under which he assumed the office.

Ulpianus, On the Edict, Book XIII. But where a slave had been appointed arbiter and makes an award after he has become free, I am of the opinion that if he does this after obtaining his freedom, and the parties consent, that his act will be valid. 1Neither a ward, nor an insane person, nor one who is deaf or dumb, can be appointed an arbiter; as Pomponius asserts in the Thirty-third Book. 2Where a party is a judge, he is forbidden by the Lex Julia to act as arbiter in the same matter in which he is to decide as judge, or to appoint himself; and if he makes an award, a suit for the penalty shall not be granted. 3There are others who cannot be compelled to give an award; for instance, where the corruption or the turpitude of the arbiter is evident. 4Julianus says that if the litigants defame the arbiter, the Prætor should by no means dismiss him, but only where proper cause is shown. 5The same jurist says that if the parties treat the authority of the arbiter with contempt, and apply to the court,

Ulpianus, On the Edict, Book XIII. And afterwards the litigants return to the original arbiter, the Prætor should not compel him to decide between those who have treated him insultingly, and rejected him in order to have recourse to another. 1Ad Dig. 4,8,11,1ROHGE, 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.An arbiter cannot be compelled to give an award, unless arbitration was agreed upon. 2Where the Prætor says: “Under a pecuniary penalty”; we must understand that a sum of money is not payable on both sides, but that there may be other property promised by way of a penalty, where one of the parties does not abide by the award; and this was the opinion of Pomponius. What, then, if property was deposited with the arbiter under the condition that he should deliver it to the party who gained the case, or should deliver it if one of the parties did not comply with the award; will he be compelled to make an award? I think he will be. The case would be the same where a certain amount is left in his hands for this purpose. Hence, if one party has promised in the stipulation to deliver property, and the other to pay money, the submission to arbitration is complete, and the arbiter can be forced to make an award. 3Sometimes, as Pomponius remarks, submission to arbitration may properly be made by a mere agreement; as, for instance, where both parties are debtors, and agree that if either of them does not comply with the award of the arbiter, he shall not have the right to collect what is owing to him. 4Moreover, Julianus states that an arbiter cannot be forced to give an award, where one party makes a promise and the other does not. 5Ad Dig. 4,8,11,5ROHGE, Bd. 17 (1875), Nr. 55, S. 252: Schiedsvertrag abhängig von der Ernennung der Schiedsrichter durch einen Andern.He is of the same opinion where the penalty was agreed upon subject to a condition; as, for instance: “If a certain ship should return from Asia so many thousand”, for the arbiter cannot be compelled to make an award until the condition has been fulfilled, lest it may be void on account of the failure of the condition; and Pomponius also says the same thing in the Thirty-third Book on the Edict.

Ulpianus, On the Edict, Book XIII. Pomponius says that if either party is released from the penalty agreed upon, the arbiter should not be forced to give an award. 1Ad Dig. 4,8,13,1BOHGE, 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. 331: Gegenstand des Schiedsvertrages können auch künftige Rechtsverhältnisse sein. Bezeichnung der Person der Schiedsrichter.He also states that if my demands alone are submitted to arbitration, and I have stipulated for a penalty to be paid by you; it must be considered whether or not this is a reference to arbitration. I do not see, however, wherein he finds any difficulty; for, if the understanding of the parties only relates to the claims of one of them, there is no reason in his statement, as it is lawful for one thing to be arbitrated; but if he means that the stipulation is only made on one side, what he says is reasonable. If, however, the party who made the stipulation is the one bringing the action, the submission to arbitration may be said to be more complete, for the reason that the party who is sued is protected; as, for instance, by an exception based upon contract, and if he does not comply with the award, he who brings the suit can have recourse to the stipulation. I do not think, however, that this opinion is correct; for it is not sufficient for the party to have an exception, as the arbiter may be compelled to make an award. 2Ad Dig. 4,8,13,2ROHGE, 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.A person is held to have accepted the office of arbiter (as Pedius says in the Ninth Book), when he undertook the duties of a judge, and promised to settle the controversies of the parties by his award. But if, as he says, the arbiter should only proceed so far as to ascertain whether the parties will permit their controversy to be settled by his advice or authority, he is not held to have assumed the duties of arbiter. 3An arbiter who has been appointed is not compelled to give an award upon those days on which a judge is not required to render a decision; unless the term fixed by the arbitration is about to expire, and cannot be prolonged. 4Thus, if the arbiter is urged by the Prætor to render his award, it will be perfectly just that he should have time granted him for the doing so, if he swears that the case is not yet sufficiently clear to him.

Ulpianus, On the Edict, Book XIII. Even though the Prætor should unqualifiedly state in the Edict that he will compel the arbiter to make an award; nevertheless, he should sometimes pay attention to his reasons, and accept his excuses, where proper cause is shown; as, for instance, where he is defamed by the litigants; or where deadly hostility arises between him and them or one of them; or where age or sickness, with which he was afterwards attacked, releases him from the discharge of his duty; or if he is occupied with his own affairs, or there is urgent necessity for his making a journey; or some public office requires his attention; and this is the opinion of Labeo.

Ulpianus, On the Edict, Book XIII. Moreover, where one of the litigants has made an assignment of his property, Julianus states in the Fourth Book of the Digest that the arbiter cannot be compelled to give an award, since the party referred to can neither sue nor be sued. 1Where the litigants return to the arbiter a long time afterwards, Labeo states that he is not compelled to give an award. 2Where there are several arbiters who have assumed the office, one of them alone cannot be compelled to make an award, but all must do so, or none. 3For this reason Pomponius asks in the Thirty-third Book, if, where an arbitration was agreed upon in such a way that whatever Titius decided Seius was to award; which of the two would be subject to compulsion? I am of the opinion that an arbitration of this kind, in which the arbiter has not perfect liberty to render his decision is not valid. 4But where the terms of the arbitration are that the question shall be decided by either Titius, or Seius; Pomponius says—and we agree with him—that the arbitration is valid; but the arbiter who must be compelled to make the award is the one whom the litigants agree upon. 5Ad Dig. 4,8,17,5BOHGE, Bd. 2 (1871), S. 293: Unterschied zwischen compromissum und receptum arbitrii. Bestimmung des Obmanns, wenn sich die zwei erwählten Schiedsrichter nicht einigen können.Where the arbitration is referred to two persons, on the condition that if they disagree they may call upon a third; I think that a reference of this kind is not valid, for they may disagree as to the person applied to, but if the condition is that Sempronius shall be joined as the third party, the arbitration will be valid, since there can be no disagreement in calling upon him. 6Ad Dig. 4,8,17,6BOHGE, Bd. 2 (1871), S. 293: Unterschied zwischen compromissum und receptum arbitrii. Bestimmung des Obmanns, wenn sich die zwei erwählten Schiedsrichter nicht einigen können.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 416, Note 9.Let us consider a special case, namely: where a question is submitted to two arbiters, should the Prætor compel them to give an award; for, on account of the natural tendency of men to disagree the question might be almost incapable of settlement. Where the number is odd, arbitration for that reason is sustained, not for the reason that it is easy for all of the parties to agree, but because, if they disagree, there is a majority upon whose decision reliance can be placed. It is usual, however, for the controversy to be submitted to two persons, and if they do not agree, the Prætor should compel these arbiters to select some third person whose authority may be obeyed. 7Ad Dig. 4,8,17,7ROHGE, Bd. 10 (1874), S. 311: Die Separatvota der Schiedsrichter stellen keinen Schiedsspruch dar.Celsus states in the Second Book of the Digest, that where the dispute is submitted to three arbiters, it is sufficient if two of them agree, provided the third is present; but if he is absent, even though the remaining two agree, the award will not be valid, because arbitration was submitted to more than two, and the third by his presence might have induced them to accept his own opinion:

Ulpianus, On the Edict, Book XIII. Ad Dig. 4,8,21 pr.BOHGE, 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.But, if an arbiter who has been appointed for the settlement of several controversies, which have no connection with one another, gives an award with reference to one of them, but not as to the others, what then? Has he ceased to be arbiter? Therefore, we must consider whether he has a right to change a decision which he has already rendered with reference to the first one. It makes a great deal of difference whether or not he was to decide all the matters submitted to him for arbitration at the same time, for if he was to decide with reference to all of them, he could change his decision, as he had not yet rendered it; but where he was to decide them separately, there were, so to speak, several things to be determined, and so far as that particular matter in controversy was concerned, he has ceased to be arbiter. 1Where an arbiter gives the award that Titius does not appear to owe Seius anything, although he does not forbid Seius to bring an action; still, if the latter should do so, he would appear to oppose the award of the arbiter; and both Ofilius and Trebatius are in accord upon this point. 2I think that an arbiter cannot appoint a special time for payment, and Trebatius also appears to be of this opinion. 3Pomponius says that where an arbiter gives an ambiguous award, it is invalid; for instance: “You must pay him what you owe him”; or, “You must adhere to your division”; or, “You must accept as your share what you have paid to your creditors”. 4Moreover, where an arbiter forbids an action to be brought for a penalty, in accordance with the terms of the arbitration; I find it stated in the Thirty-third Book of Pomponius that this is void; and he is right, because the conditions of arbitration have no reference to the collection of the penalty. 5Papinianus states in the Third Book of Questions, that if the time fixed for the arbitration has expired, the litigants may agree upon a new one, with the same arbiter, but if the latter refuses to act in the second arbitration, he cannot be forced to do so; provided he was not responsible for the delay in performing his duty; as, if he was to blame for the delay, it would be perfectly right that he should be compelled by the Prætor to again act as arbiter. This question can only arise where no arrangement was made in the first arbitration to extend the time, but if such provision was made, and he himself extended it, he will continue to act as arbiter. 6Ad Dig. 4,8,21,6BOHGE, 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.The term “complete arbitration” is used where settlement is made with reference to the matters in controversy, for it relates to all disputes; but where there happens to be a difference concerning only one thing, although a complete arbitration may have been agreed upon, still, the rights of action in other cases remain unimpaired; for the only matter involved in an arbitration is that which it was agreed upon should be determined. It is, however, the safer way where anyone wishes only some certain matter to be settled by arbitration, to expressly mention the same when it is submitted. 7Where an arbiter orders some dishonorable act to be performed, the litigants are not obliged to obey. 8Where the parties appear before the arbiter within the time which was designated, and he orders them to appear after the time has elapsed, no penalty can be exacted. 9Where either of the parties does not appear, for the reason that he was prevented by illness, or by absence on public business, or by the duties of some magisterial office, or for any other good reason; Proculus and Atilicinus hold that the penalty can be collected; but where he was ready to appoint the same arbiter for a new arbitration, an action will not be permitted against him, or he can protect himself by an exception. This, however, is only true where the arbiter was willing to accept the second arbitration; for Julianus very properly stated in the Fourth Book of the Digest, that he could not be forced to do so if he was unwilling, and in any event, the party is released from the penalty. 10Where, for instance, the arbiter orders the parties to appear before him in a province, when it was agreed that the reference should take place at Rome; the question arises can he be disobeyed with impunity? The opinion given by Julianus in the Fourth Book is the better one, namely, that the place contained in the agreement to submit the matter in dispute is the one intended; and therefore, that he may be disobeyed with impunity if he orders the parties to appear elsewhere. What course then should be pursued if it does not appear what place was agreed upon? The better opinion is that that place was intended where the agreement for arbitration was entered into. But what must be done if the arbiter orders them to appear in some place adjoining the City? Pegasus holds that the order would be valid; but I think that this is only true where the arbiter is a man of such authority that he can perform his duties in retired places, and the litigants can readily go to the place designated. 11But if the arbiter should order the parties to go to some disreputable locality, as for instance, to a tavern, or a brothel, as Vivianus says, he can doubtless be disobeyed with impunity; and this opinion Celsus also approves in the Second Book of the Digest. With reference to this he very properly raises the question, if the place is of such a character that one of the litigants cannot honorably go there but the other can, and he who could go without forfeiting his self respect did not do so, and the other went in spite of his disgrace, can the penalty agreed upon at the time of the arbitration be collected because the act was not performed? He very justly thinks that it cannot be collected, for it would be absurd if the order should be valid with reference to one party, and void with respect to the other. 12It should be considered within what time an action should be brought on the stipulation, provided the party does not comply with the award of the arbiter. Celsus states in the Second Book of the Digest that if no certain time was specified, a reasonable time is understood, and that, when this has elapsed, suit can forthwith be brought for the penalty; nevertheless, he says if the party complies with the award before issue is joined in the case, the action based on the stipulation cannot proceed:

Ad Dig. 4,8,23ROHGE, Bd. 24 (1879), Nr. 16, S. 56: Anspruch auf Konventionalstrafe wegen Verspätung der Hauptleistung ungeachtet vorbehaltloser Annahme der Letzteren.Ulpianus, On the Edict, Book XXIII. Celsus says that if the arbiter orders payment to be made by the kalends of September, and this should not be done, even though it was tendered afterwards, still, the penalty of the arbitration having once become due the right of action is not extinguished, since it is true that the money was not paid before the kalends. Where, however, the party accepted payment when it was offered, he cannot bring suit for the penalty, but will be barred by an exception on the ground of fraud. The case is different where he was only ordered to make payment. 1Celsus also states, if you order me to pay you and you are prevented from receiving the money by illness, or for some other good reason, that Proculus is of the opinion that the penalty cannot be exacted even if I do not pay you until after the kalends, although you may be ready to receive it. He also thinks, very justly, that there are two orders of the arbiter to be considered, one to pay a sum of money, and the other to pay it before the kalends; therefore, although the penalty cannot be exacted from you because you did not pay the money before the kalends, as you were not to blame, you will still be liable for the part which you did not pay. 2He also says that the words “Comply with the award”, means nothing else than for the party to do all in his power to obey the decision of the arbiter. 3Celsus also says that if an arbiter orders me to pay you a sum of money on a certain day, and you refuse to receive it, the defence can be made that the penalty is not collectible by law:

Ulpianus, On the Edict, Book XIII. Labeo states that where it was provided in the submission for arbitration that the arbiter should give his award concerning all matters involved in the case on the same day, and should have authority to extend the time, and he did extend the time after certain matters were decided, while others were not; the extension will be valid, but his award may be disobeyed with impunity. Pomponius approves the opinion of Labeo, which also seems to me to be correct, because the arbiter did not perform his duty in making his award. 1This clause also: “He may extend the time for arbitration”, does not give the arbiter the right to do anything else than to extend the time, and, therefore, he cannot diminish or make any change in the terms of the original agreement; hence he is always obliged to dispose of the other matters also, and must give an award with respect to everything. 2Where the bond of a surety has been furnished in the first agreement for arbitration, Labeo states it should also be offered in the second one. Pomponius, however, doubts whether the same, or other sureties who are solvent should be furnished; for he says what would be the result if the same ones should refuse to act as sureties? I think, however, that if they should refuse to act as sureties, then, others, as good as they, should be given:

Ulpianus, On the Edict, Book XIII. The arbiter can extend the time whether he is present, or whether he does so by a messenger, or by a letter. 1Where mention of the heir or of any other parties interested in the arbitration is not made, the arbitration is terminated by death. We do not accept the opinion of Labeo, who thought that if the arbiter orders a sum of money to be paid, and the party dies before paying it, the penalty could be exacted, even though the heir was ready to tender it. 2Ad Dig. 4,8,27,2ROHGE, Bd. 4 (1872), S. 428: Unterschied zwischen Schiedsspruch und arbitrium boni viri insbesondere bezüglich der Anfechtbarkeit.The award of the arbiter which he makes with reference to the matter in dispute should be complied with, whether it is just or unjust; because the party who accepted the arbitration had only himself to blame, as was stated in a Rescript by the Divine Pius, as follows: “The party must submit to the award with equanimity, even though it may be by no means well founded.” 3Where there are several arbiters and they have given different awards, a party will not be obliged to abide by them, but if the majority agree their award must stand; otherwise the penalty can be exacted. Hence, we find the question raised by Julianus, where out of three arbiters one gives an award for fifteen aurei, another for ten, and another for five, whose decision is to stand? Julianus states that five must be paid, since all of them agreed upon that amount. 4Where anyone of the litigants fails to appear, since he did all he could to prevent the matter from being settled, the penalty may be exacted. Thus, a decision rendered when all the litigants were not present will not be valid, unless it was expressly stated in the agreement to submit the matter to arbiters that, whether one or both of them were absent the decision could be rendered, but he who was in default incurs the penalty, because he was responsible for the arbitration not taking place. 5He is held to make his award in the presence of the parties when he does so before those who are endowed with intelligence; but he is also not considered to have done this where he made it in the presence of a party who is insane, or demented. In like manner, a decision rendered in the presence of a ward, unless his guardian is present, is not legally made. Julianus makes the same statement with reference to all these matters in the Fourth Book of the Digest. 6Again, where either party being present, prevents the arbiter from giving his award, the penalty can be collected. 7Where no penalty was mentioned in the proceedings for arbitration, but the party simply promised to comply with the judgment, an action for damages may be brought against him.

Ulpianus, On the Edict, Book XIII. Where suit is brought against a person whom the arbiter forbade to be sued, this is in violation of his award. What then should be done if suit was brought against his surety, could the penalty be collected? I think that it could, and Sabinus holds the same opinion; for suit is practically brought against the principal. But where the arrangement was made with a surety, to submit the matter to arbitration, and suit is brought against the principal, the penalty cannot be collected; unless it was to the interest of the surety that the action should not be brought.

Ad Dig. 4,8,31ROHGE, 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.Ulpianus, On the Edict, Book XIII. When anything is done in contravention of a stipulation, suit can be brought for this cause only where the act was committed without fraud on the part of the person who made the agreement; for an action can be brought under the stipulation only on the ground that no one can profit by his own deceit. But if there is added to the agreement for arbitration, “If something is done fraudulently in the matter”; he who was guilty of fraud can be sued on the stipulation; and, therefore, if anyone corrupts an arbiter either with money, or by improper solicitation, or bribes the advocate of the other party, or anyone of those to whom he has entrusted his own case, he can be sued on the clause relating to fraud, as well as where he, through artifice, gets the best of his adversary. And, by all means, if he acts deceitfully in any way during the suit, an action on the stipulation can be brought; therefore, if his adversary desires to bring an action on the ground of fraud, he should not do so, as he is entitled to one based on the stipulation. Where, however, a clause of this kind is not included in the agreement for arbitration, then, an action on the ground of fraud or an exception will lie. This submission to arbitration is a complete one, because it mentions the clause relating to fraud.

Ulpianus, On the Edict, Book XIII. When a minor, with the aid of his curators, files a claim against his guardians, for a smaller amount than he was entitled to, and, for this reason he then sues his curators, and judgment is rendered against them for the amount of the interest which he had in not having the guardians condemned through the negligence of the curators; cannot restitution be obtained from the said guardians? Papinianus says, in the Second Book of Opinions, that restitution can still be made. Hence, if the curators have not yet paid the judgment, and they take an appeal, they can be met by an exception on the ground of fraud, to compel them to assign their rights of action against the guardians. But what should be done if the curators have already paid the judgment? This will be an advantage to the guardians, since, in this instance, the minor will lose nothing, as he will appear to be more solicitous for gain than for the reparation of his injury; unless, indeed, he is ready to assign his rights of action to his curators.

Ulpianus, On the Edict, Book XIII. If the Prætor should order notice to be served to discontinue a new work, and then should forbid it; an action founded upon the first notice will not lie, as this would be contrary to the ruling of the Prætor.

The Same, On the Edict, Book XIII. Where an action is brought against the heir of a testator who passed over his son in his will, and the plaintiff is barred by an exception on the ground that the will is in such a condition that possession of the estate can be granted by the Prætor contrary to its provisions, and the emancipated son has neglected to apply for possession of the estate, it is not unjust that he should be enabled again to institute proceedings against the heir. This was stated by Julianus in the Fourth Book of the Digest.

The Same, On the Edict, Book XIII. Whenever we stipulate for a penalty in order that some act may be performed, we express ourselves properly as follows, “If it is not done in this way.” If, however, the penalty is for some act not to be performed, we should express it as follows, “If anything contrary to this is done.”

Ulpianus, On the Edict, Book XIII. Labeo thought that where a slave, who was manumitted under a condition, secretly removed some article, and the condition was soon fulfilled, he would be liable to this action.

The Same, On the Edict, Book XIII. He does not alienate who merely fails to obtain possession.