The compromissum of the ius commune
Justinian accepted and further consolidated these changes. Not only did he retain the protection for the victorious defendant, 7 he also made available an actio in factum to the plaintiff, in whose favour the arbitrator had pronounced.[2728] 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.[2729] 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,[2730] 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.[2731]3.
More on the topic The compromissum of the ius commune:
- 1. The older ius commune
- The regime of the ius commune: all or nothing
- Requirements of mora debitoris (ius commune)
- Impossibilium nulla obligatio est under the (earlier) ius commune
- III. FURTUM IN THE IUS COMMUNE
- Consequences ofmora debitoris (ius commune)
- Donation under the ius commune and in modern law
- THE ROMAN CONTRACT OF STIPULATION UNDER THE IUS COMMUNE
- JUSTINIAN, IUS COMMUNE AND MODERN DEVEEOPMENTS
- Conventio, pactum and contractus under the ius commune
- 7.7.3 The Ius Commune in Italy, the Iberian Peninsula and the Netherlands
- Post-classical developments, Corpus Juris and ius commune
- Just like the Roman contractual system, the whole range of condictiones supplementing it was received into the ius commune;
- "Solutio propria", "in praecisa forma et specie obligationis"[3885] (to use the terminology of the European ius commune) has always been, and still is, the most important way of terminating obligations.
- Praetor’s Edict, Ius Honorarium, and Ius Novum