COMPROMISE,
contracts. An agreement between two or more persons, who, to avoid a
lawsuit, amicably settle their differences, on such terms as they can
agree upon. Vide Com. Dig. App. tit. Compromise.
2.
It will be proper to consider, 1. by whom the compromise must be made;
2. its form; 3. the subject of the compromise; 4. its effects.
3.
It must be made by a person having a right and capacity to enter into
the contract, and carry out his part of it, or by one having lawful
authority from such person.
4.
The compromise may be by parol or in writing, and the writing may be
under seal or not: though as a general rule a partner cannot bind his
copartner by deed, unless expressly authorized, yet it would seem that a
compromise with the principal is an act which a partner may do in
behalf of his copartners, and that, though under seal, it would conclude
the firm. 2 Swanst. 539.
5.
The compromise may relate to a civil claim, either as a matter of
contract, or for a tort, but it must be of something uncertain; for if
the debt be certain and undisputed, a payment of a part will not, of
itself, discharge the whole. A claim connected with a criminal charge
cannot be compromised. 1 Chit. Pr. 17. See Nev. & Man. 275.
6.
The compromise puts an end to the suit, if it be proceeding, and bars
any Suit which may afterwards be instituted. It has the effect of res
judicata. 1 Bouv. Inst. n. 798-9.
7.
In the civil law, a compromise is an agreement between two or more
persons, who, wishing to settle their disputes, refer the matter, in
controversy to arbitrators, who are so called because those who choose
them give them full powers to arbitrate and decide what shall appear
just and reasonable, to put an end -to the differences of which they are
made the judges. 1 Domat, Lois Civ. lib. h. t. 14. Vide Submission; Ch.
Pr. Index, h. t.
No comments:
Write comments