Table of Contents
TITLE XVII – OF COMPROMISES OR ARBITRATION
Art. 1. A compromise is a covenant by which persons who have a law suit or difference with one another, name arbitrators to decide the matter and bind themselves reciprocally to perform what shall be arbitrated.
Art. 2. A compromise must be reduced to writing.
Art. 3. They who cannot bind themselves cannot compromise, such as a married woman, unless it be under her husband’s authority.
An attorney in fact cannot compromise without a special power.
The tutors or curators of minors, of persons interdicted or absent, cannot compromise without being authorised to do so by a judge.
Art. 4. Parties may compromise either all their differences or only some of them in particular; and likewise they may compromise a law suit already instituted or only in contemplation, and generally every thing which they are concerned in or which they may dispose of.
Art. 5. One may compromise the damages incurred by a public offence, but it is without any prejudice to the prosecution of it in behalf of the territory.
Art. 6. The power of arbitrators is limited to what is explained in the compromise.
Art. 7. If the compromise does not limit any time, the power of the arbitrators may continue in force during three months from the date of the compromise unless the parties agree to revoke it.
Art. 8. It is usual to undergo a penalty of a certain sum of money in the compromise which the person who shall contravene the award or bring appeal therefrom, shall be bound to pay to the other who is willing to stand to it, but this covenant is not obligatory and the compromise may subsist though no penaly is stipulated against the person refusing to abide by it.
Art. 9. All persons may be arbitrators except such as are under some incapacity or infirmity which renders them unfit for that function.
Therefore minors under the age of eighteen years, persons interdicted, those who are deaf or dumb cannot be arbitrators.
Art. 10. Women who on account of their sex cannot be judges are likewise incapable of being named arbitrators by a compromise.
Art. 11. There are two sorts of arbitrators;
The arbitrators so properly called and the amicable compounders.
Art. 12. The arbitrators ought to determine as judges agreeable to the strictness of the law.
Amicable compounders are authorised to abate something of the strictness of the law in favor of the natural equity.
Amicable compounders are moreover subject to the same rules which are provided for the arbitrators by the present title.
Art. 13. Before examining the difference to them submitted, the arbitrators ought to take an oath before a judge, or justice of the peace, to render their award with integrity and impartiality, in the cause which is laid before them as arbitrators.
Art. 14. The parties who have submitted their differences to a compromise, must declare their pretentions and prove them in the same manner as in a court of justice, by producing writings and evidence, observing in this the rules agreed on by mutual consent or which are established by the arbitrators.
Art. 15. The arbitrators ought to appoint a time and place for examining the matter to them submitted and to give notice of such appointment to the parties or to their attornies.
Art. 16. The parties must attend the arbitrators either in person or by their attorney, with their witnesses and documents, the arbitrators may also if they think it proper, examine the parties themselves or call for any other information.
Art. 17. As the arbitrators have no public authority, they cannot compel the attendance of witnesses before them but by applying to a court of justice to have the necessary process to compel such attendance.
They have also no authority to take the oath of any witness brought before them, but said witness shall be sworn before any judge or justice of the peace.
Art. 18. The law has secured each of the parties against the voluntary procrastination of the other, by permitting the arbitrators on due notice given, to proceed without his attendance.
Art. 19. If the arbitrators disagree, another shall decide and that other is called an umpire.
Art. 20. The nomination of the umpire is either made by the parties themselves at the time of the compromise, or left to the discretion of the arbitrators.
Art. 21. Whenever the umpire has not been appointed by the compromise, the arbitrators have the power to appoint him, though such power is not mentioned in the compromise. But if the arbitrators cannot agree on this election, the umpire shall be appointed ex officio by the judge.
Art. 22. The umpire ought to take an oath similar to that taken by the arbitrators, before examining the matter or the point submitted to him.
Art. 23. The arbitrators who have once consented to act as such ought to determine the suit or the difference which is submitted to them as soon as possible and within the time fixed by the compromise.
Art. 24. The arbitrators cannot exceed the power which is given to them and if they exceed it their award is null: nevertheless if the parties have authorised them to determine the case as amicable compounders, or according to good faith and natural equity without confining them to the strictness of the law, they shall be at liberty to retrench something of the good right of one of the parties to grant it to the other and to take a medium between equity and the extreme strictness of the law.
Art. 25. The power of the arbitrators cannot extend to things which are not included in the compromise; therefore whenever a new point of difference arises, a new power is necessary, and to avoid this inconvenience, there ought to be inserted in the compromise a general clause, empowering the arbitrators to give their award on all the differences which may arise between the parties during the course of the arbitration.
Art. 26. The arbitrators ought to give their award within the time limitted by the compromise, and it would be null if it were given after the said time is expired.
Art. 27. Nevertheless the parties may give power to the arbitrators to prolong the time and in this case their power lasts during the time of the prorogation.
Art. 28. If the compromise specifies a certain time for drawing on the proceedings in the cause which the arbitrators are to decide, they cannot give their award till the said time is expired.
Art. 29. If there are several arbitrators named by the compromise, they cannot give their award unless they all see the proceedings and give judgement on it together; but it is not necessary that the award be signed by them all.
Art. 30. The arbitrators shall fix by their award the amount of the sum which they sentence one or several of the parties to pay to the other or others, through this omission does not annul the award.
Art. 31. The arbitrators may likewise pronounce by their award on the interest and costs but their silence on that subject is not a cause of nullity.
Art. 32. The award in order to be put in execution, ought to be approved by the judge, but this formality is only intended to invest the award with a sufficient authority to insure its execution and not to submit to the judge the examination of its merits, except in case an appeal has been brought before him.
Art. 33. He who is not satisfied with the award, may appeal from it to the superior court, though the parties had renounced such appeal by the compromise, but the appellant before being heard on his appeal, ought to pay the penalty or forfeit stipulated in the compromise, if any has been stipulated, and this penalty shall ever be due though the appellant afterwards renounces his appeal, but if he succeeds to have the award reversed either in whole or in part, the court who shall pronounce on the appeal, shall order the repayment of the penalty; nay, if the award is confirmed the penalty which has been paid shall operate no diminution on the amount of said award.
Art. 34. The arbitrators having once given their award, cannot retract it nor change any thing in it.
Art. 35. The compromise and power given to the arbitrators, is put at an end by any one of the following causes.
1st, By the expiration of the time limited either by the compromise or by law though the award should not be yet rendered;
2d, By the death of one of the parties or arbitrators;
3d, By the final award rendered by the arbitrators;
4th, When the parties happen to transact touching the thing in difference, or when this thing ceases to exist.
|< Previous | Next >||© Manuscript notes copyright 1968 by Louis V. de la Vergne.|