The Regula “nasciturus pro iam nato habetur” and the Appearance of the Expression “mulieris portio” in the Digest and its Consequences
The Regula “nasciturus pro iam nato habetur” and the Appearance of the Expression “mulieris portio” in the Digest and its Consequences

Summary/Abstract: Interesting as it may be, there are some instances in contemporary Romanistic, when a certain regula is considered by secondary literature as if it were a rule of general application, consequently those not versed deeply enough in Roman law, might as well deem that such a rule could enjoy an overall usage, that is independently from time and place. One amongst these regulae is presented by Paul in the Digest (Paul. D. 1, 5, 7 [lib. sing.de port., quae lib. damn. conc.]), which contains the famous phrasing “Qui in utero est, perinde ac si in rebus humanis esset custoditur, quotiens de commodis ipsius partus quaeritur […]”. In contrast to this widely cited text, it is likewise interesting to have recourse to a case, where Ulpian reports about an imperial rescript related to the admission of the application of SC Plancianum (cf. Ulp. D. 25,4, 1 pr. – 1 [24 ad ed.]). In this text, another famous, and extensively quoted wording appears, namely the expression mulieris portio. The scrutiny of the aforesaid particular case and its secondary literature, as well as its legislative echoes may lead to a layered examination of the above phrase, as well as a more nuanced understanding of the stance of the foetus in Roman law.

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