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Justinian I · The Digest of Justinian §1.5.26.pr

Fictional Existence of the Unborn Child in Civil Law

Passage 90 of 9271 · Latin

Summary

The principle that the unborn child is considered as already existing in almost the entire civil law is presented, along with specific examples regarding inheritance, postliminium, exclusion from usucapion, and the reservation of patronal rights over a freedman.

[IULIANUS libro sexagensimo nono digestorum. ] §1.5.26.prQui in utero sunt, in toto paene iure ciuili intelleguntur in rerum natura esse.
[JULIANUS, in the sixty-ninth book of the Digests.] Those who are in the womb are understood, in almost the whole of the civil law, to exist in the nature of things.
nam et legitimae hereditates his restituuntur: et si praegnas mulier ab hostibus capta sit, id quod natum erit postliminium habet, item patris uel matris condicionem sequitur: praeterea si ancilla praegnas subrepta fuerit, quamuis apud bonae fidei emptorem pepererit, id quod natum erit tamquam furtiuum usu non capitur: his consequens est, ut libertus quoque, quamdiu patroni filius nasci possit, eo iure sit, quo sunt qui patronos habent.
For even legal inheritances are restored to them; and if a pregnant woman is captured by enemies, that which is born has the right of postliminium, and likewise follows the condition of the father or the mother. Furthermore, if a pregnant female slave is stolen, although she gives birth while in the possession of a bona fide purchaser, that which is born, as being stolen property, is not acquired by usucapion. It is a consequence of these things that a freedman also, as long as a son of his patron can be born, is in the same legal position as those who have patrons.

Notes

  1. §1.5.26.prin rerum natura esse — The phrase "in rerum natura esse" (literally "to be in the nature of things") is a Roman legal expression meaning "to exist in reality" or "to be already born and alive," indicating that the unborn child is legally treated as already born.
  2. §1.5.26.prusu non capitur — The verb "usu capere" means "to acquire by usucapion" (usucapio). Since stolen property (res furtiva) was prohibited from being acquired by usucapion under the Twelve Tables and the Lex Atinia, the child born of a stolen pregnant slave (who was in the womb when stolen) is likewise excluded from usucapion.
  3. §1.5.26.prhis consequens est, ut — The dative demonstrative "his" (neuter plural) refers back to the previously mentioned specific legal examples (inheritance, postliminium, and exclusion from usucapion). The construction means "it is a logical consequence of these cases that...", where the "ut" clause functions as a subject noun clause.

Cite this passage

Justinian I, The Digest of Justinian §1.5.26.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:1.5.26.pr

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