appendix — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Appendix II. On Arbiters
- They are called arbiters who are freely chosen or admitted by each opposing party, after the manner of judges, for deciding some lawsuit.
The agreement by which the faculty of composing the lawsuit is given to them is called a compromise (in French, compromis). By this agreement the opposing parties promise by mutual consent that they will execute whatever shall be established by the arbiters. But a compromise can be made either by a private writing, or by an authentic writing made by a notary, or even from common consent expressed orally before the arbiters themselves. Under penalty of nullity, both the matter to be judged and also the names of the arbiters must be reported in it.
Arbiters, whoever they are, once admitted by the different parties, properly enjoy the office of judges and perform all their functions, no otherwise than if they had been designated by public authority. Therefore they can instruct the cause brought before them, defer the matter to another more suitable time, hear witnesses, and finally, by a sentence passed, decide the lawsuit absolutely. Nevertheless, from French civil law, in order that such a sentence may have force in the external forum, it must be recognized by the President of the tribunal of first instance of the province in which it was given.
- Since arbiters fulfill the duties of judges, they undergo approximately the same obligations and the same burdens as judges. Hence:
1º They ought not undertake a lawsuit for the judging of which they do not have sufficient learning; otherwise they sin against commutative justice and contract the obligation of restitution 1.
1 ** Understand these things thus: they always sin because of the danger to which they commit themselves of erring in a matter of justice, unless perhaps they employ the aid of experts; but they are bound to restitution if in reality they have inflicted damage by erring.
2º Arbiters are bound to judge according to the laws of the region, unless the parties have granted to them the faculty of composing the matter according to equity and good. For then they ought, from what is good and equitable, to promote the advantage of each party.
3º They must take the greatest care against acceptance of persons, namely lest, drawn aside by hatred, aversion, or excessive affection, they pass sentence against the rules of equity. As to the rest, the same things must be said about arbiters as about the judges themselves.