La regla de la ventaja para el concebido y el aforismo infans conceptus pro iam nato habetur en el derecho civil chileno

Abstract

A background for the advantage regulation for that who has been conceived or commodum doctrine –according to which that who has been conceived is regarded as born for everything that favors it– is discussed. Its subsequent realization in the aphorism infans conceptus pro iam nato habetur and its inclusion in XIX-century codes and, especially in the Chilean one, are also analyzed. From the above, the article presents an analysis of the bases for both the regulation and the aphorism; these bases have been essentially two: the parity thesis, of a Justinean Roman root and included in the Castilian law; and the fiction thesis of a pandectistic German origin and welcomed mainly by the BGB and by the Italian Civil Code of 1942. Finally, which tradition has been followed by the Chilean Civil Code to protect that who has been conceived is explored.