II. On Arbiters

What are arbiters? - Arbiters are said to be those who are spontaneously chosen or admitted by both opposed parties, after the manner of judges, for settling some lawsuit. The pact by which the faculty of settling the lawsuit is attributed to them is called a compromise. By this pact the adverse parties by mutual consent promise that they will execute whatever shall be established by the arbiters. But from the sentence of arbiters, according to C. I., it is lawful to appeal, otherwise than from common Law, S. Th. 2. 2. q. 69. a. 3 ad 2. But the compromise can be drawn up either by public act or by private writing, according to C. I.; otherwise it is null. Dig. l. 4, title 8; Decretals l. 1, title 43; C. I. civil procedure, preliminary title, c. 2; Lugo, Resp. Mor., l. 6, d. 21.

Women are prohibited from being chosen as arbiters, because it befits them to be mindful of their modesty, and therefore they ought not to mix themselves in manly offices. L. fin. Cod. de Recept. arb.; C. Proc. I. 10. They are excepted if by law, custom, or privilege they obtain some civil jurisdiction. C. 4, l. 1, title 43 of the Decretals.

Commitment to arbiters cannot be made by private persons in those causes which directly pertain to the right of a Superior, as criminal and penal causes, or to the public good, as, for example, a cause of invalidity of marriage, of religious profession, etc.

Arbiters according to the Italian Penal Code 207 are held as public officials as regards the effects of penal law.

The sentence of arbiters, in the common tongue, is called a lodo. "If someone has been made arbiter concerning his own matter, he cannot say sentence, because he would order himself to do something, or prohibit himself from seeking something; but no one can command himself or prohibit himself." L. 51 de Receptis arb. Dig.

What is the office of arbiters? - Arbiters, whoever they may be, once admitted by the different parties, properly enjoy the office of judges, and carry out all their functions, just as if they had been designated by public authority. The reason is that someone can subject himself to the judgment of another, although that other is not his superior. If this is done by two litigants, so that the lawsuit may be settled, an arbiter is had, who therefore, although not from public authority, nevertheless is constituted judge from a private pact. But private pacts, like public laws, oblige in conscience. C. H. 1820; S. Th. 2. 2. q. 67. a. 1 ad 2.

You will resolve: Since arbiters fulfill the offices of judges, they have almost the same rights and the same obligations. Wherefore they can instruct the case brought before them, defer the matter to another more opportune time, hear witnesses, and finally, after sentence has been rendered, settle the lawsuit absolutely. They ought not undertake a lawsuit for judging which they do not have sufficient learning; otherwise they sin against commutative justice and contract an obligation of restitution, if in fact by erring they inflict damage. Arbiters are bound to judge according to the laws of the region, because they are assumed after the manner of judges, unless the parties have granted them the faculty of composing the matter according to equity and the good. For then, according to natural equity, they must promote the advantage of each party. They must take the greatest care against acceptance of persons, namely lest, abstracted by hatred, aversion, or excessive affection, they render sentence against the rules of equity. C. B. 319.

Note: For the sentence of arbiters to have force in the external forum, it is necessary to fulfill the conditions placed in the Codes of various nations. C. I. civil 1742, 1764 ff.; civil procedure 8 ff.; C. G. civil 1989, 2044 ff.; civil procedure 1003; C. H. 1821; C. A. 1391.