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 post- classical times, are usually referred to as pacta legitima.^[2711] The main cases falling into this category are dotis promissio, donatio and compromissum.

By way of example,^[2712] we shall, at this stage, briefly consider the structure and history of the compromissum.^[2713] It owes its name^[2714] 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.^[2715] This is an expression of the principle of reciprocity underpinning the arbitration proceedings.^[2716] 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,^[2717] and they had to indicate which subject matter they wished to submit to him,^[2718] ^{^[2719] ^[2720] No appeal was possible against the arbiter's decision? ^iy 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.^[2721] 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, indicari apud iniquos, et non apud sanctos?")^[2722] 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 indicium 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.^[2723] Oral formalities had, for all practical purposes, been abandoned, so that a compromissum (cum or sine poena) was nothing but a pactum in writing.^[2724] 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.^[2725] ^{^[2726] ^[2727] 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.}
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Classical and post-classical compromissum

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