Reception of the Roman-Canonian law in the legal presumption of codified legitimate paternity

Abstract

The presumption of paternity related to the just nuptials, iuris tantum, is an institute fully in force in Roman law, which has been applied since the medieval
Reception to the present day. Therefore, in the presence of certain circumstances, the paternity of the husband can be challenged and ignored, according to a fragment of Ulpiano, which refers to a responsum of Cervidio Scaevola, D. 1, 6, 6. Initially that reference is made at the time of the conception, then in Justinian also to the birth, fixing, like tempus legitimum, that the son is born after the 180 days after the celebration of the marriage or before the 300 after its dissolution. This approach reaches the European Civil Codes of the Modern Age, some of which literally transcribe the rule of Paulo, D. 2, 4, 5, as art. 312 of the French Civil Code of 1804. Modern techniques of investigation of paternity do not exclude or render useless or superfluous the general presumptive principle of the codes, although fortunately it is more viable to exclude with greater security the imputation to the husband, who has not contributed to his acts to the generation.