Das arbitrium boni viri bei Cervidius Scaevola

Abstract

AbstractThe arbitrium boni viri in Cervidius Scaevola: The complex relationship between arbiter and arbitrium (boni viri) intrigued Gerardo Broggini in his 1957 monograph „Iudex arbiterve“. He tried, taking into consideration both phenomena, to describe a process of objectivisation based on the intentions of the parties. An analysis of some succession law cases, however, gives no reliable foundations for such a dependency at least of the category arbitrium boni viri on party autonomy. A conscious use of the category by the jurists (here Cervidius Scaevola) seems more likely: in order to balance the roles in legal conflicts and to maintain the jurist’s position. However, an (albeit puzzling) source on arbitratus might give another hint: Possibly Scaevola treated certain cases of arbitration according to the same principles he also applied in arbitrium boni viri cases.