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must state the
party to pay
for at the time of the award without stating in what place the sale shall take place" (Comyn's Digest, Arb. E. 11). The price of malt being fluctuating, and selling for more in one place than another, the place of sale should in that case have been specified, in order to make the award certain. An award was also held bad that directed one of the parties to deliver up certain specified goods, three boxes and several books, without naming the books or stating their number (Cockson v. Ogle, Lut. 550). Where a cause is referred, it is not necessary for the arbitrator by his award to fix the actual amount of costs to be paid by either party. It will be sufficient if he states who is to pay such costs when ascertained. Although this appears to be somewhat contrary to the principle of certainty shown to be necessary in an award, it is accounted for by the fact of such costs being taxed by the proper officer appointed for that purpose, whose duty it is to fix the amount to be paid and thereby make the award certain. This element of certainty in an award is necessary to its validity, and if that is wanting the award will be set its validity. aside. In order, therefore, to avoid this form of procedure and the delay attendant thereon, it should be the aim of every arbitrator to make his award as clear as possible, and as certain, so that if an application is made to set it aside, it will be for some other reason than a want of certainty in its provisions.
Certainty in award is necessary to
Award must be possible.
Difference between an impossible and a difficult award.
AWARD MUST BE POSSIBLE, REASONABLE, CONSISTENT,
UNLESS an award is possible of performance, there might just as well be no award. If an arbitrator award an act to be done which is impossible of performance ex naturâ rei, it is void, "as if he award a sum of money to be paid on a day past, or that one party shall deliver up a deed not in his custody." But there is a difference between awarding an act which it is impossible to perform, and one that is difficult to carry out; in the latter case, if it is not in itself contradictory or repugnant, it is valid, e.g., an award directing one party to pay 20l. when he is not in possession, either present or prospective, of that amount; for there is nothing contradictory in the award itself (Bacon's Abr. Arb. E. 4). If an award direct two things to be done, one of which is impossible, it is not void on that account if the other act awarded is capable of performance; and the party will be bound to do the act which is the possible Where the act alternative (Wharton v. King, 2 B. & Ad. 528). If an act awarded is possible at the time the award is made, but becomes impossible afterwards by the conduct of the party himself, or of a stranger to the submission, the party who is to perform the act is bound by the award (Comyn's Digest, Arb. E. 12). An award ought also to be reasonable, therefore an
Where one of two acts awarded is impossible.
awarded is made impossible by conduct of party.
Award must be reasonable.
award that one shall serve the other for two years is void; so is an award that one party shall release his land in satisfaction of a trespass (Comyn's Digest, Arb. E. 13). In both these cases the cause of the award being void is on account of its not being reasonable. An award must also be consistent, so Award must be consistent, that one part does not contradict another. Where an arbitrator awarded that A. should pay B. 1007., and that both should give general releases, and subsequently that B. should pay A. 201., the award was held bad (Ames v. Milward, 8 Taunt. 367). The inconsistency of this award is clearly apparent, for after mutual releases by the parties of their claims. against each other had been executed, it is difficult. for an ordinary observer to see why B. should then pay 201. to A. An award would also be void if an arbitrator acquitted one of the parties of all blame in the matter referred, and then gave his award against him, there again being an inconsistency which appears unaccountable (Ames v. Milward, supra). An award must be legal, as, notwithstand and legal. ing the fact that an arbitrator has great power given to him by his position, he is not, like the king, "above all law," but is bound to make his award in accordance with it; therefore, if an award direct any act to be done that is illegal and contrary to the law, the award is bad, so far as that act is concerned, as where a sum of money due to one of the parties, and stated on the face of the award to have arisen out of some illegal transaction between the parties, the award directing such sum to be paid was held bad, as regards that amount only. Although Sunday is not
form of conveyance.
conveyances, to be settled by such counsel as he (the arbitrator) shall appoint, the award is bad; as although he need not of necessity draw the conveyance himself, he should indicate the form of it, and not leave that to the discretion of the conveyancer employed (Tandy v. Tandy, 9 Dowl. 1044).
Award must be certain.
When award will be considered certain.
AWARD MUST BE CERTAIN.
IF it is necessary (and we have seen in the last Chapter that it is) for an award to be a final determination of all matters in dispute between the parties, it is no less important to its validity that it should be certain in its meaning. The parties to the reference must be able to understand in what position they are placed by the award, and what are their duties and responsibilities in connection with it. Where an award does not possess those elements of certainty necessary to place its meaning beyond a doubt, the Court will come to the assistance of the parties, if it is possible to do so, and will make such alterations in the document as will make clear the meaning of the arbitrator in drawing it up. If the award show such a certainty as was contemplated by the parties to the submission, it will be upheld; but uncertainty in a material part of it will be fatal
(Hawkins v. Colclough, 1 Bur. 274). want of certainty in a material part of the award is sufficient to render it void in the majority of cases, still a want of conclusiveness, or any uncertainty that can be rectified by the Court, will not have that effect. Where a sum of money was ordered to be paid within a certain time from the date of the award, and the award bore no date, it was held to be sufficiently certain. The date of the award in this case would be calculated from the publication of it, from which time, as we have shown, it alone begins to be effective (Armit v. Breame, 1 Salk. 76). Where a bond was ordered to be given up to be cancelled within a certain time from the date, without stating the date, it was considered sufficient (Bell v. Gipps, 2 Ld. Raymond, 1141). An award that some act shall be done by A. or B. has been held void for uncertainty. In a case where an arbitrator awarded that one party or the other should purchase certain lands at a certain price, the Court decided that the arbitrator should have said which of the parties was to purchase the land, as he had fixed the price at which such purchase should be made (Lawrence v. Hodgson, 1 Y. & J. 6). Where an arbitrator, how- Alternative award is good. ever, awarded that one of the parties should do one or other of two things in the alternative, it was held that the award was good if either of the things were capable of being performed (Simmonds v. Swain, 1 Taunt. 549). Where an arbitrator states facts to raise a question of law for the Court, the facts should be stated with such a degree of certainty as will enable the Courts to draw their conclusions of law