Receptum arbitri

Receptum, the second of the so-called pacta praetoria, was the informal undertaking of a certain guarantee by either an arbitrator, a banker, or a carrier by sea, an innkeeper or a stablekeeper.

First of all, the receptum arbitri. We are dealing here with the undertaking by a person to act as arbitrator in a dispute between two or more parties. The Corpus Juris Civilis contains the following definition:

"Recepisse autem arbitrium videtur, ut Pedius libro nono dicit, qui indicis partes suscepit finemque se sua sententia controversiis impositurum pollicetur, quod si. inquit, hactenus intervenit, ut experiretur, an consilio suo vel auctoritate discuti litem paterentur, non videtur arbitrium recepisse. ^1,33

The arbitrator assumed the duty of settling a dispute submitted to him.³⁴ The receptum was based on and referred to an arbitration agreement (compromissum) between the parties. In modern parlance one could say that this compromissum constituted the offer to the third person to act as arbitrator. The latter had to accept the role of a judge, not that of a mere conciliator or adviser. The receptum did not, however, provide the parties involved in the dispute with an action against the arbitrator to honour his undertaking. They were able only to approach the praetor to apply the appropriate measures of coercion.³⁵ The receptum arbitri has survived the centuries.³⁶ Though it has not been incorporated into the BGB as one of the specific contracts, it is still generally recognized that the arbitrator can act only on the basis of a contractual relationship (sui generis) existing between himself and the parties to the dispute.³⁷ No action can be brought against him to carry out the arbitration and make his award.³⁸

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