[IDEM libro uicesimo septimo quaestionum. ] §22.1.4.prSi stipulatus sis rem dari uacuamque possessionem tradi, fructus postea captos actione incerti ex stipulatu propter inferiora uerba consecuturum te ratio suadet.
[THE SAME, Questions, Book 27] If you have stipulated for a thing to be given and its vacant possession to be delivered, reason suggests that you will obtain the fruits subsequently gathered by the action on an uncertain stipulation, on account of the latter words.
an idem de partu ancillae responderi possit, considerandum est.
Whether the same can be answered concerning the offspring of a female slave must be considered.
nam quod ad uerba superiora pertinet, siue factum rei promittendi siue effectum per traditionem dominii transferendi continent, partus non continetur: uerum si emptor a uenditore nouandi animo ita stipulatus est, factum tradendi stipulatus intellegitur, quia non est uerisimile plus uenditorem promisisse, quam iudicio empti praestare compelleretur.
For as far as the former words are concerned, whether they contain the act of the promisor or the effect of transferring ownership by delivery, the offspring is not contained; but if the buyer has so stipulated from the seller with the intention of novating, he is understood to have stipulated for the act of delivery, because it is not likely that the seller promised more than he would be compelled to perform in the action on purchase.
sed tamen propter illa uerba 'uacuamque possessionem tradi' potest dici partus quoque rationem committi incerti stipulatione: etenim ancilla tradita partum postea editum in bonis suis reis stipulandi habere potuisset.
But nevertheless, on account of those words "and its vacant possession to be delivered," it can be said that the account of the offspring also is brought into the uncertain stipulation; for indeed, if the female slave had been delivered, the stipulator could have had her offspring born subsequently in his own property.
§22.1.4.1Si post contractam emptionem ante interpositam stipulationem partus editus aut aliquid per seruum uenditori adquisitum est, quod ex stipulatu consequi non poterit, iudicio empti consequitur: id enim quod non transfertur in causam nouationis iure pristino peti potest.
If, after the purchase is contracted but before the stipulation is interposed, an offspring is born or something is acquired for the seller through a slave, which cannot be obtained from the stipulation, he obtains it by the action on purchase; for that which is not transferred into the cause of novation can be claimed under the prior law.