!!Экзамен зачет 2023 год / The Law of Obligations

to that effect or whether it arose, quasi ex contractu, ipso facto receptionis, was never beyond dispute.7y This lack of dogmatic clarity persists in modern law.80 It has often been noted that the reason given in the Digest for the edictum de nautis, cauponibus et stabulariis does not, under modern conditions, provide a very satisfactory justification for the imposition of this stringent type of liability. Carriers by sea, innkeepers and stablekeepers may, of course, still be individually unreliable; but it can hardly be maintained that in their collectivity, as members of the respective professions ("hoc genus hominum"),81 they are particularly disreputable. After all, hotels without bawdyhouses are no longer that exceptional. Hence, the rule of cessante ratione legis cessat lex ipsa has been invoked by South African innkeepers,82 and their German counterparts vigorously opposed the adoption of the rule that was to become § 701 BGB.83 But in neither of these jurisdictions did the lobbyists prevail. There have always been good reasons for the receptum, quite apart from those advanced by Ulpianus, most notably those deriving from the fact that the customer and his property are exposed to dangers emanating from a sphere which only the other party is able to organize and control.84

(g) Range of application

Inevitably, under these circumstances, the question had to be asked why the receptum should be confined to nautae, caupones and stabularii; the policy considerations underlying this strict type of liability would seem to be applicable to a broader range of professional activities. Thus, over the centuries, we see indeed an extension of the provisions of the edict. This development had already started in classical Roman law: "De exercitoribus ratium, item lyntrariis nihil cavetur: sed idem constitui oportere Labeo scribit, et hoc iure utimur."85 There appears to have been some discussion whether the edict should be applied only to exercitores navium engaged in transport over the open sea or also to river boatmen. Labeo advocated the

African law cf. Van dcr Horst, op. cit., note 75, n. 177. The same applied in Germany (to innkeepers) until 1966; but cf. now § 702 a BGB.

framework of the contract of lodging ("Beherbergungsvertrag") concluded between the innkeeper and his customer; it was then viewed by some authors as being based on a separate contract of deposit. Today, the view prevails that we are dealing with a liability ex lege (quasi ex contractu?). For details cf. e.g. Peter Koch, "Zur Neuregelung der Gastwirtshaftung", 1966 Versicherungsrecht 707 sqq.; Uwe Hiiffer, in: Miitichener Kommentar, vol. Ill, 2 (2nd ed. 1986), § 701, nn. 3 sq.

*" Pomp./Ulp. П. 4, 9, 3, 1.

S2 Cf. Davis v. Lockstone 1921 AD 153 at 159. аз "Motive", in: Mugdan, vol. II, p. 326.

M4 For details cf. e.g. Gluck, vol. 6, pp. 110 sq.; Donges, op. cit., note 42, pp. 21 sq.; "Motive", in: Mugdan, vol. II, pp. 326 sq.

H5 Ulp. D. 4, 9, 1, 4; cf. e.g. Gluck, vol. 6, pp. 126 sq.; Donges, op. cit., note 42, pp. 78 sq.; Meyer-Termeer, op. cit., note 43, pp. 188 sq.

Created with novaPDF Printer (www.novaPDF.com)

extension to those in charge of rafts or barges, and his opinion has been followed. The next in line were carriers by land. At the time of the usus modernus pandectarum, we find some authors still maintaining the distinction between carriers by sea and by land. It would be unreasonable, so they argued, to subject the latter to the receptum liability also; they could do much less than a nauta to protect their customer's property, when they had to take their coaches over inconvenient roads and through dark and dangerous forests without any kind of convoy or protection.86 In practice, however, carriers by land ("Postmeister und Landkutscher") had generally come to be placed on a par with the nautae of the praetorian edict; predominantly this was approved in contemporary literature,87 and has also been accepted in modern South African law.88 The question has even been asked (though not yet decided) whether the edict should not also be extended to carriers by air.89

The South African courts have, however, balked at the idea of considering the owner of a parking garage as (the equivalent of) a stablekeeper. Schreiner JA had this to say on the matter:

"The question whether the keeper of a parking garage comes under the term stabularius can, in my opinion, only be answered in the negative. The differences between a dead thing like a motor car, which, though in a sense self-propelled, requires human agency to set and keep it in motion, and a living creature like a horse, possessed of its own capacity to initiate movement and subject to the impulses and the needs that go with life, appear to me to be so obvious and so important as to make it highly artificial to treat them as legal equivalents. . . . It is not necessary to speculate on the question how far the analogy would have to be carried, and whether those who store bicycles, perambulators or roller-skates would also be subject to a stricter standard of obligation than those who store chairs and tables. For I am clear that . . . considerations of fairness . . . not only do not favour the proposed extension but militate strongly against it. The parking of motor vehicles in a modern city is a serious problem and it cannot be socially advantageous to increase the risks of those who in the course of their business contribute to the solution of the problem."90

One is left to wonder what the somewhat quixotic pronouncement on the similarities and dissimilarities between horses and motorcars was intended to prove.

m Cf. e.g. Ferdinand Christian Harpprecht and Wolfgang Adam Lauterbach, as quoted by Gliick, vol. 6, p. 128 and discussed by Donges, op. cit., note 42, pp. 73 sqq.

87 Gliick, vol. 6, pp. 126 sqq.; cf. further Story, Bailments, § 488; Donges, op. cit., note 42, pp. 80 sqq.; on the codifications of the late 18th and 19th centuries (as, particularly, § 2459 II 8 PrALR and §§ 970, 1316 ABGB) cf. Ogorek, Gefahrdungshaftung, pp. 83 sq. Contra, however, the pandectists; cf., for example, Vangerow, Pandekten, § 648;

CF. Muller, Ueber die de recepto actio und deren analog? Ausdehnung auf die Postanstalten (2nded., 1857); pp. 65 sqq.

8a Tregidga & Co. v. Sivewright (1897) 14 SC 76 at 81 sq.; CSAR v. Adtmgton & Co. 1906 TS 964 at 970 sq. (but cf. also Stocks & Stocks (Pty.) Ltd. v. T.J. Daly & Sons (Pty.) Ltd. 1979

(3) SA 754 (A) at 761G-H).

89Van der Horst, op. cit., note 75, n. 170.

90Bssa v. Diuaris 1947 (1) SA 753 (A) at 775-6. Cf. also the judgment by Tindall JA, pp. 765 sq.

Created with novaPDF Printer (www.novaPDF.com)

(h) The liability of common carriers

In his judgment, incidentally, Schreiner JA refers to the liability of the "common carrier"91 (as opposed to a private carrier). This terminology has repeatedly been used by South African courts. It has been borrowed from English law, where carriers both by land and by sea have also traditionally been subjected to a particularly strict type of liability, as long as they are common carriers.92 A common carrier has been defined as one who undertakes, for hire or reward, to transport the goods of those who choose to employ him from place to place.уз Private carriers, who do not exercise the business of common carriers, are responsible only to the same degree as other bailees for hire. The reception of the term "common carrier" into Roman-Dutch law, however, is apt to create confusion;94 not because under the ius commune both a professional and a private carrier would have been subject to the receptum-type liability, but because the extent of the common (professional) carrier's liability is different under the ius commune (and consequently under modern South African law) than under the English common law.45 Joseph Story describes the historical development as follows:

"By the common law, as understood in the reign of Henry the Eighth, a responsibility of the like extent and nature [s.c: as under the civil law] seems to have existed in England; for it is said that at that time a common carrier was held chargeable in cases of a loss by robbery, only when he had travelled by roads dangerous for robbery, or had driven by night, or at any inconvenient hour. However this may be, it is certain that in the commercial reign of Elizabeth a different rule prevailed; and the doctrine has for a good length of time been firmly established, that a common carrier is responsible for all losses, except those occasioned by the act of God, or of the King's enemies."1"'

The common carrier is thus treated as an insurer against all but certain excepted perils, which are very narrowly circumscribed. What is the rationale?

"And this is a politick establishment", said Lord Holt in Coggs v. Bernard, a decision already repeatedly referred to,97 "contrived by the policy of the law, for the safety of

91Essa v. Divaris 1947 (1) SA 753 (A) at 775.

92Cf. e.g. Story, Bailments, §§ 488 sqq.

Cf. the references in Story, Bailments, § 495. He adds: "To bring a person within the description of a common carrier, he must exercise it as a public employment; he must undertake to carry goods for persons generally; and he must hold himself out as ready to engage in the transportation of goods for hire as a business, not as a casual occupation pro hac vice". On the early history of the "common" callings in general, see Simpson, History, pp. 229 sqq.

For a detailed comparison between the common carrier of English law and what is usually termed "public carrier" in South African law (a person who holds himself out to the public as undertaking the carriage of goods (or persons) as his profession; c(. Prinsloo v. Venter 1964 (3) SA 626 (O) at 627D-G), see Donges, op rit., pp. 62 sqq.

95Cf. e.g. Donges, op. cil., note 42, pp. 69 sqq.

96§ 489. Cf. further the detailed exposition of the law relating to common carriers by Sir William Jones, An Essay on the Law of Bailments (1836), Appendix pp. 1-106.

97(1703) 2 Ld Raym 909 at 918.

Created with novaPDF Printer (www.novaPDF.com)

all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, etc. and yet doing it in such a clandestine manner, as would not be possible to be discovered. And this is the reason the law is founded upon in that point."98

It is obvious that these policy considerations are borrowed from Roman law;99 interestingly, however, they are used to justify an even stricter liability than that comprised by the Roman custodia.100

(i) Range of liability under the ius commune

Among the authors of the ius commune, the scope of the public carrier's responsibility was in dispute.1111 This controversy arose from the fact that the glossators had attempted to translate the strict receptum liability into culpa terminology. They regarded liability for damages as a kind of punishment for a wrongful act and applied the principle of "nulla poena sine culpa".102 Hence, they based the carrier's liability on "culpa levissima".Jn3 As a consequence, the carrier was not responsible,

<)H Cf. also Best CJ, in Riley v. Home (1828) 5 Bing 217: "When goods arc delivered to a carrier, they are usually no longer under the eye of the owner; he seldom follows, or sends any servants with them, to the place of their destination. If they should be lost or injured by the grossest negligence of the carrier or his servants, or stolen by them, or by thieves in collusion with them, the owner would be unable to prove either of these causes of loss. His witnesses must be the carrier's servants; and they, knowing that they could not be contradicted, would excuse their masters and themselves. To give due security to property, the law has added to that responsibility of a carrier which immediately arises out of his contract to carry for a reward, namely, that of taking all reasonable care of it, the responsibility of an insurer. From his liability as an insurer, the carrier is only to be relieved by two things, both so well known to all the country, when they happen, that no person would be so rash as to attempt to prove that they had happened when they had not, namely, the act of God, and the King's enemies" (p. 220).

99 Cf. also Lane v. Cotton (1701) 12 Mod Rep 472: ". . . and the law will not expose him [sc. the carrier] to so great a temptation, but he must be honest at his peril. And this is the reason of the civil law in this case, which though I am loth to quote, yet inasmuch as the laws of all nations are doubtless raised out of the ruins of the civil law, . . . it must be owned that the principles of our law are borrowed from the civil law, therefore grounded upon the same reason in many things" (p. 482, per Holt CJ).

""' One of the main differences is that under the common law the carrier is liable in case of robbery (unless committed by public enemies). In Roman (and Roman-Dutch) law this fell under the exception of vis maior (or damnum fatale). On the liability of innkeepers under the English common law, cf. Story, Bailments, nn. 469 sqq. He states at the outset of his discussion that the strict (though not as strict as the common carrier's!) liability of an innkeeper is usually said "to be founded on the custom of the realm. In point of fact, the origin of the latter may be clearly traced up to the Roman law, from which the common law, without any adequate acknowledgements, has from time to time borrowed many of the important principles which regulate the subjects of the contracts." One important difference, however, lies in the fact that the common carrier (unlike the Roman nauta) is under an obligation to contract.

10 For what follows, cf. particularly W.J. Hosten, "Die Aanspreeklikheid van die depositarius en die vervoerder mgevolge die gemene reg", 1964 Ada Jitridica 128 sqq. 112

Lange, Schadensersatz und Privatstrafe, pp. I l l sqq.

1(13 Cf. also Domenico Maffei, Caso fortuito e responsabihta ne\V eta del glossatori (1957), pp. 23

sqq.; Hoffmann, Fahrlassigkeit, pp. 35 sqq.

Created with novaPDF Printer (www.novaPDF.com)

for instance, in cases of theft, provided no negligence was attributable to him. Even the slightest degree of negligence led to liability; on the other hand, however, if he could show that he had acted diligently, that was enough to relieve the carrier of his liability. "Casus fortuitus" was the term most often used to draw the line and it included vis maior as well as what we have referred to as "lesser accidents".104 Many writers of the usus modernus pandectarum (including, more specifically, some Roman-Dutch authorities) still shared this view. A very clear statement to this effect is that of Vinnius, who refers to Ulp. D. 4, 9, 3, 1:

"quo locojurisconsultus conferens actiones locati et depositi cum honoraria, quae ex edicto isto competit, utilitatem ejus, quae ex edicto est, hoc nomine maxime commendat: quod in locato conducto culpa, in deposito dolus duntaxat praestetur: edicto vero omnimodo, qui recepit, teneatur, etiamsi sine culpa ejus res penit aut damnum datum est, ita tamen, ut nee ille praestet casus fortuitos, seu quod damno fatali aut vi majore contigit. Igitur ex senteutia Jurisconsulti is, qui recepit, praestat medium aliquid inter culpam et casum fortuitum, quod non praestat conductor: atqui hoc medium nihil aliud esse, fateri omnes debent, quam culpam lcvissimam."1"5

It is not surprising, in view of these authorities, that the South African courts have occasionally based the carrier's liability on culpa.1"6 Today, however, a different view prevails:

"The construction placed on this edict was that the bailees named were liable in every case ofloss or damage occasioned by theft, injury or otherwise, although happening without any default on their part, unless it happened by superior force or by what was called 'fatal damage', as for instance by shipwreck, or by the act of pirates."1"7

As so often in a judgment by Lord De Villiers, this statement is squarely based on Voet.108 It does, however, find support in the writings of a variety of other authors109 and gives a fair reflection of the receptum (custodia) liability of classical Roman law.110

The passage quoted above from Vinnius' Commentary on the Institutiones, incidentally, also makes it clear, why the magna quaestio of modern historical research, namely that of the function of the actio de recepto in relation to the actio locati, did not unduly trouble the writers of the ius commune. Justinian had tried to redefine all instances of the classical contractual custodia liability in terms of culpa. Since the days of the glossators, it was therefore accepted that a conductor operis

104 On the terminology cf Donges, op. at., note 42, pp. 41 sqq.; Hosten, 1964 Acta Juridka 132 sq.; cf. also Windscheid/Kipp, §§ 384, n. 6. 1(15 Institutiones, Lib. Ill, Tit. XXV,

5, 2.

106Stephan Frazer & Co. v. Port Elizabeth Harbour Board (1900) 17 SC 231 at 234; МаЯаца

v.Cole (1908) 25 SC 434 at 436; Postmaster-General v. Van Niekerk 1918 CPD 378 at 382 sq.

107Tregidga & Co, v. Sivewright (1897) 14 SC 76 at Й1, per Lord De Villiers CJ. Cf. further

Davis v. Lockstone 1921 AD 153 at 158 sq., 164 sqq.; also Essa v. Diuaris 1947 (1) SA 753 (A) at 764 sq.

108Cf. Commentariits ad Pandectas. Lib. IV, Tit. IX, II.

109Cf. e.g. Cluck, vol. 6, p. 120.

The same applies to the liability of the innkeeper in modern German law; cf. § 701

BOB.

Created with novaPDF Printer (www.novaPDF.com)

was liable, as a rule, for culpa (levis); and liability of carriers under the praetorian edict was considerably stiffer in comparison, no matter whether it was conceived to be strict or construed as culpa levissima.

III. PACTA LEGITIMA: COMPROMISSUM AS EXAMPLE

1. Classical and post-classical compromissum

Informal agreements, which were not recognized by the praetor and which came to be regarded as binding and legally effective only in postclassical times, are usually referred to as pacta legitima.111 The main cases falling into this category are dotis promissio, donatio and compromissum. By way of example,112 we shall, at this stage, briefly consider the structure and history of the compromissum.113 It owes its name114 to the fact that two parties who wished to submit their dispute to arbitration formally promised each other to pay a penalty in case they did not abide by the arbitrator's decision. The mere agreement to submit to arbitration was not binding under classical law. But the parties could make their arrangement indirectly enforceable by means of two (non-genuine) stipulationes poenae. Each of the parties had to promise a penalty; a unilateral stipulatio poenae did not give rise to a valid compromissum.115 This is an expression of the principle of reciprocity underpinning the arbitration proceedings.116 In their compromissum, the parties had to appoint the arbiter (it was concluded "in aliquem arbitrum"), they had to confer upon him the full and unrestricted power to decide their dispute,117 and they had to indicate which subject matter they wished to submit to him,118 No appeal was possible against the arbiter's decision.j iy

11 The term occurs in Ulp. D. 2, 14, 5 and Paul. D. 2, 14, 6 ("Legitima convcntio est quae lege aliqua confirmatur. ct ideo interdum ex pacto actio nascitur vel tollimr, quotiens lege vel senatus consulto adiuvatur.").

112On donatio cf. supra, pp. 477 sqq.

113It must immediately be stated that among modern scholars there is no unanimity on this topic. The views put forward in the following lines have been substantiated, in particular, by Zieglcr, Privates Schiedsgericht, pp. 47 sqq., 180 sqq., 246 sqq.; cf. also Giorgio La Pira, " 'Compromissum' e 'litis contestatio' formuiare", in: Studi in onore di Salvatore Riccobono, vol. II (1936), nn. 187 sqq. A different picture is presented, most notably, by Mario Talamanca, Ricerche in tema di "compromissum" (1958), passim; idem, "L'arbitrato romano dai 'veteres' a Giustiniano", (1974) 20 Labeo 86 sqq. He emphasizes (even for classical law) the informal arbitration agreement; the stipulationes poenae merely served to secure fulfilment of the obligations arising from it. In other words: he, more or less, regards as classical what is presented here as a postclassical conception.

114On the terminology ("compromittere", as used in the praetorian edict) cf. Ziegler,

Privates Schiedsgericht, pp. 8 sqq.

115Ulp. D. 4, 8, 11, 4.

116Cf. further Zieglcr, Privates Schiedsgericht, pp. 55 sq.

117Cf. e.g. Paul. D. 4, 8, 19 pr.; Ulp. D. 4, 8, 17, 3.

118A "compromissum plenum" ("quod . . . ad omnes controversias pertinet") was

possible: Ulp. D. 4, 8, 21, 6.

m Cf. e.g. С 2, 55, 1 (Ant.).

Created with novaPDF Printer (www.novaPDF.com)

During the post-classical period we see a gradual shift of emphasis away from the formal penalty stipulations towards the underlying conventio, the arbitration agreement of the parties. This development is closely related to the general degeneration (or atrophy) of the classical stipulation as a formal, oral promise,120 as well as to the rise (and eventual official recognition) of certain extraordinary forms of jurisdiction. Of these, the episcopalis audientia was the most important.121 Based, originally, on St. Paul's request to the early Christians not to bring their disputes before a heathen judge ("Audet aliquis vestrum, habens negotium adversus alterum, iudicari apud iniquos, et non apud sanctos?")122 the episcopalis audientia emerged when the bishops assumed the role of arbitrators in private disputes between clerics as well as between laymen. Provocatio ad episcopale iudicium was, of course, not based on a formal compromissum, since this, too, would have been enforceable only by the State courts. Once a concurring jurisdictional competence of the bishops had become recognized by the (by now) Christian State, a mutual assimilation between private and episcopal arbitration was bound to occur.

In the result, therefore, the compromissum sine poena began to be recognized in post-classical practice.123 Oral formalities had, for all practical purposes, been abandoned, so that a compromissum (cum or sine poena) was nothing but a pactum in writing.124 If the sententia arbitri was favourable to the defendant, he was granted an exceptio veluti pacti ex compromisso in order to prevent the plaintiff from further pursuing his claims against him.125 Such a defence had not been available in classical law: "Ex compromisso placet exceptionem non nasci, sed poenae petitionem."!2<> Strictly speaking, this principle of classical law was still respected; for it was not an exceptio pacti (based on the compromissum) that was granted to the defendant, but an exceptio veluti pacti arising from the sententia arbitri ex compromisso which the parties to the dispute had promised to comply with.

1211 Cf. supra, pp. 78 sqq.

121 For details, see Walter Selb, "Episcopalis audientia von der Zeit Konstantins bis zur Nov. XXXV Valentinians III.", (1967) 84 ZSS 162 sqq.; Ziegler, Privates Schiedsgerkht, pp. 167 sqq.; Giulio Vismara, "Ancora sulla 'episcopalis audientia'", (1987) 54 SDHI53 sqq. Apart from episcopalis audientia, the special jurisdiction conceded by the Romans to the Jews was of some significance in the present context; cf. Ziegler, Privates Schiedsgerkht, pp. 175 sq.; generally: Kaser, RZ, p. 527.

1221. Corinthians 6, 1.

123Cf. С 2, 55, 5 pr. (just.).

124Cf. C. 2, 55, 4, 6 sq. (Just.). C. 2, 55, 4 pr. sqq. deal with a confirmation of this

arbitration agreement by oath. But see Nov. 82, 11, 1 (repealing again the possibility of such confirmation).

125 Cf. Ulp. D. 4, 8, 13, 1 (interpolated?: Talamanca, Rkerche, op. cit., note 113, pp. 125 sqq., but see Ziegler, Privates Schiedsgerkht, pp. 51 sq., 183); C. 2, 55, 5 pr. (Just.).

fe6 Ulp. D. 4, 8, 2; cf. further Ziegler, Privates Schiedsgerkht, pp. 50 sq.

Created with novaPDF Printer (www.novaPDF.com)

2. The compromissum of the ius commune

Justinian accepted and further consolidated these changes. Not only did he retain the protection for the victorious defendant;127 he also made available an actio in factum to the plaintiff, in whose favour the arbitrator had pronounced.128 On the other hand, however, as usual, Justinian tried to preserve and revive the institutions of classical law. He therefore encouraged the parties to take the matter into their own hands and to give teeth to their arbitration agreement by way of penalty clauses. Neither actio in factum nor exceptio veluti pacti applied to this standard type of compromissum and the penalty became a kind of forfeit-money, payment of which effectively released the parties from their obligation to stand by the sententia arbitri.129 Nevertheless, the idea that the arbitration proceedings were based on an (independent) pactum, to which the penalties could (but did not necessarily have to) be added, was now firmly entrenched. In this form, the compromissum became part of the ius commune; and once the fetters of "ex nudo pacto non oritur actio" had been overcome,130 there was nothing extraordinary in an informal arbitration agreement. "Constituitur arbiter compromisso partium, id est, conventione, qua contendentes arbitri sententiae se stituros promittunt, plerumque quidem poena apposita" is, for instance, the definition provided by Johannes Voet.131

3. Arbiter, arbitrator and amicabilis compositor

From the Middle Ages, however, another problem occupied the minds of thejurists. Secular as well as ecclesiastical arbitration practice had developed in a way that was not always in conformity with the sources of Roman Law. In particular, certain persons were now acceptable as arbitrators who had been disqualified under the provisions of the Corpus Juris Civilis.132 Hence the attempts to distinguish between two types of arbitrator.133 They found a textual

" Even in case of an entirely informal compromissum sine poena (". . . sub со pacto in scriptis vcl non in scriptis habito, ut eorum definitioni stctur"): С 2, 55, 5 pr.

1 K C. 2, 55, 4, 4; C. 2, 55, 4, 6; C. 2, 55, 5 pr, sq. This actio in factum was based (dogmatically) on a recognition in writing of the sententia arbitri on the part of both parties (subscripto), i.e. on a special agreement post sententiam arbitri, not on the (informal) compromissum. However, a tacit recognition of the award was sufficient too ("si sikntio earn roboraverint"); it was deemed to have taken place if the parties did not protest within a period of 10 days.

129 Nov. 82, П; Talamanca, Ricerche, op. cir., note 113, pp. 139 sqq.; Ziegler, Privates

Schiedsqericht, pp. 239 sqq.

110 Cf. infra, pp. 539 sqq.

131 Commentaruis ad Pandectas, Lib. IV, Tit. VIII, III. For the modern South African common law, cf. Catherine Smith, in: Joubert (ed.)> The Law of South Africa, vol. 1 (1976), n. 458.

Cf. particularly C. 2, 55, 6 (women) and Ulp. D, 4, 8, 9, 2 (referring to the person who would otherwise have been judge in the same matter); Karl-Heinz Ziegler, "Arbiter, arbitrator und amicabilis compositor", (1967) 84 ZSS 376 sqq.

" Helmut Coing, "Zur Entwicklung des Schiedsvertrages im Jus Commune", in:

Festschrift fur Heinz Hiihner (1984), pp. 35 sqq.

Created with novaPDF Printer (www.novaPDF.com)

basis in a fragment taken from the epistulae of Proculus:

"[A]rbitrorum cnim genera sunt duo, unum eiusmodi, ut sive aequum sit sive iniquuum, parere debeamus [quod observatur, cum ex compromisso ad arbitrum itum est], alterum eiusmodi, ut ad boni viri arbitrium redigi debeat, etsi nominatim persona sit comprehensa, cuius arbitratu fiat."134

This text makes it clear, first of all, that in classical Roman law the arbiter (ex compromisso) was entirely free in his decision; he was not bound by any rules of substantive law.135 Thus, his award was binding, even if it was unjust or inequitable. Apart from that, the parties could also leave the settlement of certain points to a third party who had to decide according to an objective standard, namely that of the arbitrium boni viri. This second type of "arbiter" was now (i.e. in medieval science) equated with the amicabilis compositor of Nov. 86, 2: a bishop, to whom the parties under certain circumstances had to refer their dispute and who acted as a kind of conciliator. This second type of "arbiter" also came to be termed "arbitrator", and in one of the most famous procedural treatises of the Middle Ages, Durantis' Speculum iudiciale, he is defined as follows:

"Arbitrator vero est amicabilis compositor, ncc sumitur super re litigiosa, vel ut cognoscat: sed ut pacificet, et quod certum est, dividat. . . . Nee tenetur iuris ordinem servarc: nee statur eius sententiae, si sit iniqua: sed reducitur ad arbitrium boni viri."136

The regular arbiter, on the other hand, was now taken to perform the function of a judge: "Est enim arbiter, qui causam examinat in iudicii forma, sicut iudex."137 He was chosen by the parties not merely in order to restore the peace between the parties or to determine, ex aequo et bono, points which the parties had left open in their agreement, but to decide a dispute ("Nam arbiter est, quern partes eligunt ad cognoscendum de quaestione, vel lite");138 he was however bound to follow the rules of civil procedure ("Et debet iuris ordinem servare")134 and had to apply the law ("Arbiter debet sequi iuris rigorem, et aequitatem scriptam").140

Many authors in later times maintained this distinction between arbiter and arbitrator, as, for example, Joost van Damhouder ("Een

1MD. 17, 2, 76.

155 Cf. further Paul. D. 4, 8. 19 pr. ("Qualem autem sententiam dicat arbiter, ad practorem non pertinere Labeo ait, dummodo dicat, quod ipsi videtur"); Ulp. D. 4, 8, 27, 2; Ziegler, Privates Schiedsgericht, pp. 135 sqq.

(n. 36). Cf. also already the Summa tocius artis notariae Rolandini Rudolphini Bononiensis, as quoted by Ziegler, (1967) 84 ZSS 381.

LH Durantis, Speculum iudiciale, loc. dt., § 1, 2.

139 Durantis, Speculum iudiciale, §1,2. This was contrary to Roman law where, as far as the procedure was concerned, the arbiter was bound only by the terms of the compromissum: for details, see Ziegler, Privates Schiedsgericht, pp. 129 sqq.

14 Baldus, as quoted in an appendix to the rubrica "De Arbitro et Arbitratore" of Durantis1 Speculum iudiciale. This, too, was contrary to Roman law; cf. supra, note 134.

Created with novaPDF Printer (www.novaPDF.com)

Arbiter procedeert gerechtelijck as een Rechter, Een arbitrateur procedeert vrundelijck")141 or Johannes Voet ("Est vero arbiter, qui compromisso partium electus est, ut lites dirimat; diversus ab arbitratoribus, nomine quidem in jure nostro ignotis, re ipso notis; quippe qui absque ulla judicii forma ex aequo et bono lites componere suo consilio suaque auctoritate allaborant").142 Others introduced, in effect, a new type of arbitrator, the "arbiter ex aequo et bono"; he not only had to conciliate but also had to make a decision, and yet he proceeded extra iudicium and decided ut bonus vir, i.e. without being bound by the ius.143 This latter type of arbitrator lives on in modern German law, where the parties may in their arbitration agreement144 authorize the "Schiedsrichter"145 to decide in accordance with fairness and equity rather than to apply the substantive law.146

IV. COMBINED TRANSACTIONS: HIRE-PURCHASE IN ROMAN LAW

The picture presented so far was, of course, still somewhat patchy. Many (informal) agreements, which two or more parties might have wanted to enter into, were still "nudum"; since no action was available to enforce them, they were, in effect, not binding.147 Thus, there were unsatisfactory gaps in the Roman contractual system, and it became crucially important to determine, for every slightly atypical arrangement, whether it could be squeezed into one of the existing contractual niches and, if so, into which one. Occasionally the Roman lawyers were, however, able to help by ingeniously combining two different sets of actions, a process of amalgamation through which a new kind of transaction could sometimes take shape. Hire-purchase agreements provide a good example.

It is by no means rare that a purchaser requires certain goods for his immediate use without, however, being able to pay the whole purchase

141Practycke in civile saecken (Rotterdam 1649), Cap. CCIII.

142Commentarius ad Pandectas, Lib. IV, Tit. VIII, II.

143For details, see Coing, Festschrift Hubner, pp. 38 sqq., also on the meaning of ex aequo et bono under the ius commune.

144"Schiedsvertrag": §§ 1025 sqq. ZPO.

145§§ 1026 sqq. ZPO.

146As far as the procedure is concerned, the arbitrator must observe a number of special rules laid down by the ZPO, and certain general principles of (civil) procedure; otherwise he is free (within the terms of the arbitration agreement) to determine the award in his own discretion. Today, incidentally, the arbitration agreement normally has to be in writing (§ 1027 ZPO). On the historical development of arbitration in Germany, see Hermann Krause, Die geschichttiche Entwicklung der Schiedsgerichtsbarkeit in Deutschland (1930). The French code de procedure has taken over the "amiable compositeur" from the ius commune {art. 1019).

147However, in the Corpus Juris Civilis nuda pacta are associated with aequitas naturalis (Ulp- D. 2, 14, 1 pr.); thus they could provide the basis for a naturalis obligario (cf. e.g. Ulp. D. 46, 3, 5, 2; Pap. D. 46, 3, 95, 4; Guido Astuti, I contratti obbligatori nella storia del diritto italiano, vol. I (1952), pp. 176 sqq.).

Created with novaPDF Printer (www.novaPDF.com)