THE FICTION OF NASCITURUS AND SOME OF ITS EFFECTS IN CIVIL LAW-COMPARATIVE ANALYSIS WITH SPECIAL REGARD AT THE REPUBLIC OF KOSOVO
THE FICTION OF NASCITURUS AND SOME OF ITS EFFECTS IN CIVIL LAW-COMPARATIVE ANALYSIS WITH SPECIAL REGARD AT THE REPUBLIC OF KOSOVO

Summary/Abstract: Every living person has legal capacity and is capable of acquiring civil subjective rights and of course, to assume obligations. As for persons who are not alive, they are considered not to be subjects of law and cannot acquire rights or obligations before the act of birth. However, this rule has exceptions because persons that are in the mother’s womb and who are born alive, under specific legal circumstances, are subject to certain legal subjectivity acknowledged by the law. This principle has a long historical legal tradition since Roman law, namely from Paulus - Digestae 1, 5, 7 “Nasciturus pro iam nato habetur, quotiens de commodis ipsius partus quaeritur”, which has the meaning that “The unborn is deemed to have been born to the extent that his own benefits are concerned.”. Nasciturus is one of the most well-known legal fictions that exist in justice, especially in inheritance law. This article on short points will address some of the most essential elements of this institution, with comparative overview in some EU countries as well as in the case law of the Republic of Kosovo and other countries in the region and beyond. The methods that have found the most use in this article are: the doctrinal research method, the method of comparison, the method of analysis of legislation, the method of analysing case-law and the like.

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