Tambi-Piḷḷai Isaac Tambyah.

A digest of the law of contract: containing the outlines of the English law ... online

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(3) How void and revoked : (3 Grot. ii. 23; 39 Voet. vi. 7)

JJJUJg'o (a) Revoked by donor by act inter viv^s even after delivery.

^eirSStJd?^ (b) Voidof itself if acceptor dies before donor even after

delivery (Grotius ad loc, 39 Voet. vi. 7)

(c) When any one in articulo mortis gives something to
another without delivery and afterwards recovers, such
donation is considered tacitly revoked (Grotius)

(d) Gessanie periculo propter guod donaium fuerai (Voet)

(e) Revocatione donantis. (Voet)

(4) Unlike a legacy, donation valid even if unaccepted (3 Grot. ii. 23


TanDerLinden pp. 216-22; 3 Grotios ix; x. ; 12 Voet. i. ; 13 Voet. vi.;
VanDerEeessel 541—549.

^ 1. *< Matnani " is an agreement by which one person
delivers something belonging to himself, which
consists in measure^ number or weighty to
another, so that it becomes the property of the
receiver, and whereby the receiver is after-
wards bound to return as much of the same
species and of the like quality. (3 Grot x. l)

It is essential to make the contract valid

(3 Grot. X. 2-7)

(1) That the thing be something consumed in use, must be
" measure, number or weight." It must be lender's own.

(2) That the thing be delivered, unless it were already in borrower's
^^^^ possession. Constructive delivery sufficient, //a acapiendum

KSJnjr ut non praecise veram iniervemre necesse sit sed etficta suffidat^

sic ut unus vel etiam duplex actus traditionis quasi occultetur^
ambagum evitandarum causa, non modo secundum juris avilis
pUuita sed etj'uxta hodiernos mores (12 Voet. i. 4)

(3) That the ownership he vested in the receiver,
(a) Those who cannot alienate cannot lend, and so

(b^ Whatever has been delivered by minors is reclaim-
able, also whatever lent to madmen, thieves, pro-
digals ( i2 Voet i. 8 ; 3 Grot. x. 14 )


Digitized by



(i) That the borrower he bound to return- of the same spe-
cies and the like quality and the same quantity.

(a) Even if the price of the thing has altered (12Voet, i. 24
the question is d scussed)

(b) Money if borrowed may be returned in another
species of the same value (3 Grot, x, 7)


stipulated tor in cases of

3. Interest Is often
money lent:

(1) A rate of six per cent^ generally ; among. merchants twelve
is allowed (3 Grot. x. 10 end ) on bonds for a year or less
time (V. D. K. 547)

(2) The borrower may not, without lender's consent, pay back
the sum borrowed before the stipulated time, so as not to
pay interest. (V. D. Keessel 542)

(3) For default interest runs from date of default.

(4) The accumulated interest may not exceed the princip
and no compound interest is allowed.

Whether interest is lawful or not i? discussed by Grotius
in 3 Grot. x. 9. 10 (cf V. D. Keessel 544-547) under the title,
"whether an agreement for additional consideration
accords with natural law. "

4; Exceptlo non numeratae peeunkB. (12 Voet i. 31-35)

^Zt£^' If ^^y ^^^ i^ ^ned on his written acknowledg-

cuni». ment of a loan not made, he can defend himself

by a plea of non mumferatse peenniae


See 12 Voet.
i. (De Vos's


(1) Where no money or less than alleged has been advanced ;
she nulla modo numeratio std)secuta sit, sive cum minor
qmntiias nvmeiata esset, de mo^ore fmrU emtio data
(12 Voet. i. 31) ; -*

(2) Under Roman Law, action arising on a Hterarum dbligatio is

barred wi.hin two years by the otception non numerate
pecuniae pleaded by the debtor, unless the creditor can prove
receipt of consideration by other evidence (^Grot- v,3; V.D.
Keessel, 523 ; 12 Voet. i 31 ; Contra VanLeeuwen.)-

(3) Exception non numeratae pecuniae may be renounced in the

same instrument by which the Hterarum obUgaHo is contracted.
By this renunciation the benefit of the exception is only consi-
dered to have been dispensed with in the same way, as if the two
years had already elapsed. ..but the debtor is still permittedto
prove the non-receipt of the consideration . (V. D. Keessel, 624.)

(4) Burden of proof is on him who denies the advance. Voet says

that Roman-Dutch Law practice is as laid down by many jurists,
onus probandi tncufnbere neganti numerationem factum esse, quoties
cMrografho ac numerationis confessioni suhjecif exceptionis %V5
rmunciationem ; cui tamen ad probationem facienctam succursm
hacienuSy ut ante et post bimii lapsum, aliis destitvitis^ probavii
modis ad juri^urqndi delationem (ulmittafur (t2Yoet i,35)

Digitized by VjOOQ IC


" Cftmnioilatiini" to an Agveemeub ulierebya prasilii
places somelblng in the hand of another' in
order that the receiver may use the same
"gratls'Un a certain manner, and, after use, res-
tin^ the same. (3 Grot. ix. i)

(1) Chiefly non-consumable movables form the object of this
contract ; sometimes immovables are lent : e, g, a room in

(2) The property must be lent for a certain fixed time.

(3) The use must be graHs, or else it is Hire.

(4) The same thing lent must be returned' iw the same con-
dition, with all profits and fruits.

0. Actions AH>m Commodatnm*

(1) A/:tio commodaii directa, Lender v. Borrower and Heirs,
(13 Voet. vi. 2-7)

(a) For re-deivery of property, or for value.

(b) For damages due though , injury or delay.

(c) For profits and fruits^

(2) Actio commodaii contraria, Borrower v. Lender (13 Voet, vi. 8 ;
3>Gioti ix. 10)

(a). For indemnity due to damages by defect in pro-

(b) If lender or others have obstructed borrower in the
use of the property
(c) For nt.C' ssary expenses.

T Commodatnm distinguished flrom similar contracts

In pi'ecario quidem et locatione et usufructu et usu et pignore
c urn facto antichresios rem etiam ad usum concedi palam est ; sed
.• divefKimode, dwm in locatione et antichresi rum grafis^ in
precarionon ad certum tempus, inumfi-uctio rum per contractum
tantum sed etper ultmam volutdatem et legis dispositonem
alteri hibuitur utendi jus, (13 Voet. vi. L).
— ♦■

IV Depositum.

(VanrerLinden 222.223. 3 Grotius viL VanDerKeessel 681- 686. 16 Vo#t'. ULJ^ ^

''Depositnm" is a contract whereby any one gives

over toan^other any movable property to keep

without reward, to be reclaimed at liis pleasure

(3 Grot, vii* 1)

(1) If there are more than one depositor and the thing is indivisible,
all of them must go together to claim restoratioo ; and if only
one claims he mast guarantee as regards others.

(2) By stipulation the deposit may be restored to a third person
#ho thereby aK:quires a title.

Digitized by VjOOQ IC


jJvcSt* W ^operty must be manaUe (s Grot. vii. 5.) Voct » of a

ttu. contrary opinion, Depont fowtffd res onrnes jm fungibileSt sm

nan fungibileSf sive mAiles meimmohiUs (16 Voet, ill 3)

(a) One's own or another's property may be deposited.

(b) If any one who b as ; received a deposit should bei
found to be himself the owner thereof, he would not
be bound by the deposit,

(4) No reward should be taken. |

(5) The person depositing may demand restoration even imme-
diately but the acceptor may not restore it unasked unless
from urgent motives.

% Aetions. (3 Ghrot vii. 9-11. 16. Voet. iii. 4-10)

(1) The person depositing may sue the other for re-delivery and
for damages due to depositary's fault or neglect,

(a) The loss must have been (8 Grot. vii. 9) caused by
acceptor's bad faith or gross inattention ; and if he
has not taken care of the deposit in the same manner
as he has been wont to do of his own property, he
must make good the full extent of the loss,

(b) Bvi (V, D. Keessel, 631) since a depositary is
liable in respect only of hia culpa the doctrine of
Grotius is very exacting and cannot be supported by
the Roman-Law (Digest xvi, 8)

(c) A paid depositary is not liable for accident, nor of
culpa levissima but only culpa levis (V* D. K. 232)

(2) The depositary may sue depositor for an indemnity on
account of necessary expenses.

(a) A depositary who volunteers is bound for all kinds
of neglect (« Grot, vii, 10)

(b) A depositary may retain the deposit on account of
expenses ; and even a third person may, to secure a debt
due to him, arrest the deposit in the hands of the
depositary (V. D. Keessel 533)

Sequestra. 3. Like lleposituiii are Sequestration and Consig
^''u^S^ nation.


^^SfM> (^) Sequestration is depositing disputed property with a third
auImMmL person appointed by court, or by agreement, to be duly handed

oN^Afwnf. ^^^^ ^^ ^j^^ p^^^y entiled, e. g., an inheritance of which the

heir is unknown.

(2) Consi^naHon is the acceptance and care of moneys of
which the true legal owner is uncertain e.g. when a debtor
is unwilling to remain charged with money which his
creditor will not accept or is unable to accept, because
a third person has attached it.

(3) If the money deposited in a public office cannot be
recovered from the actuary, the magistrates who have
conferred the office on him without taking due
security are from the reason of law bound to make good
the deficiency (V. D. K, 636. Voet contra)

Digitized by LjOOQ IC


(4) Deposit and consignation to effectually release the debtor
must be made before witnesses but (V. Leeuwen contra)
the creditor need not be cited (V. D, Keessd 824.;

V. Pledge: Contractus Pignoris.

(V. D. Linden pp 132-133. 3 Grotiuf yiii. V, D. Keessd 225-226. 13 Voet. vii.)

Pledge as a

from pledge
ft! a right.

See Ber-
wick*! Toet.
pp. S69-261.

Placing ill

1. The Contract of "pledge" distinguished from the

(1) The word pignus someiimes expresses the righf created
{Jus constitutum\ sometimes the thing mortgaged {rem obli-
gatam) and frequently the contract ii%t\i {conventUmen) by
which such right is created (20 Voet i. 1)

(2) There are five kinds of '"pignus.'' Quod tr^tdiHone p^Jl-
citur eat contractus bonae fidei re >canstans^ quo creOitori res
traditur in semritatem crediti^ ea legi^ utsoluto dedito^ vel alia
satisfactione interveinneU eadem in specie restituatur (13 Voet.
viL 1) "Pledge" effected by delivery is the contractus

(3) The contract is often veiled by the parties under the
title of "purchase" or datio in solutum. Qualis contractus
pignoris licet subinde per contrahentes veletur "Emtionis"
tituh vel "dationis in solutum,' nm tamen ideo minus
" pignus " manety quoties circumstanUae concurrenks id suadent
(13 Voet, vU. 1)

(4) The contract of pledge is not a pledge in so f^r as the
same is the consec^uence of another obligation, but a con-
tract of itself as distinguished from those pledges which are
effected without delivery of possession (3 Grot. viii. 2)

(6) Although the contract of pledge is a real one (constans in re)
yet it induces personal obligations and actions, as dis-
tinguished from the actions in rem available to a creditor ad
persecutionem hypothecae vel pignoris (20 Voet. i. 1. and Ber-
wick ad ioc.) But both forms of the actio pignoratitia have
also place in hypothecs when the creditor has acquired, by the
actio hypothecaria^ possession of the thing hypothecated
(13 Voet. vii. 11.)

% Contractus pignoris or placing in pawn is a
contract whereby a person i^b^es any ^ property
intiie hands of another as security for his debt

(3 Grot. viii. 1)

(1) Property may be movable or immovable. In the case of
immovables there must be (V, D. K. 537) a solemn cession
in law and the payment of the duty of two-and-a-half jvr cent^

(2) A contract of pledge as respects the property of a third person
is valid even without the owner^s consent ; not, however, &o as
to create a right of pledge to the prejudice of the owner, un-
less the pledge has been effected in his own name by one
whom the owner has authorized to pledge or alienate the
thing on bis behalf (V, D. Keessel 530, 3 Grot, viii, a)

Digitized by


viL i.


& ffwo ^penollml actions arise fhrnt tbis contract.

(1) Actio pignoratiiadirecta. Debtor v. Creditor (13 Voet. viL 2-1

(a) For re-delivery of pledged property, or

(b) For its value if property be lost (3 Grot, viii,
through neglect of creditor but not through aa ' '
and the burden of proving accident is on creditor ueB
less the . accident be of an extraordinary natur^
(V. D. K, 640)

(c) For damages for injuries caused through creditor's

^■^JJJJJ"** (d) For an account and delivery of all the friiits ari^

is^^Set. profits of the article pawned. Profits must either be

carried to account in reduction of the capital debt
or, by an agreement called pactum antichresis^ be
taken in lieu of interest (3 Grot. viii. 5.) profits
include (13 Voet, vii. 4j

(a) Accesiioas of Uiiog pleged e,g. aUimumy usufruct.

(/3) All that has come to the creditor by occassion of the
pledge e.g. treasare, ttove (half.)

(e) For an account of sale, if property be sold ; for
surplus of proceeds of sale after paying off debt
(13 Voet, vu,)

(a) The sale referred to here is in default of peuiment,
(V. D. Linden, ^26.) ^

(j3) Vcet cites the Civil Law to the effect that the debtor
may sue for d&mages he may have •sustained through the
creditor's fraud, in selling the property pawned, credUor
* pignvs jam distraxerk etiam tn, id haee <ictio comparata
e»tt ut si vendendo fraudem fecerit, id quod interest
debitori praesUtur (13 Voet. vii. 4)

(2) Acto pignoratiit'a. contraria, Creditor v. Debtor (13 Vot, vii. lO)

(a) For necessary expenses (3 Grot, viii, 7) where ex-
penses are not paid, the pledge may be retained
debit of principali jam soluto pignoris permissa est
(13 Voet. vii. 10.)

(b) For losses^ sustained through defect in the thing
pledged (ibid.)

(c) For damages owing to.
{a) Plfdgiqg the property of another Ka^rot. viii 8

(P) Representing the pledge to be something different from
thdt which it really was (t6.)

(y) Rendering the pledge of no value to Creditor through
fraud (t6.)

(B) General mala fides (ib.)

Hdr Is bound by this obligation even if the
pledge had not been tlie property of liis ancestor
<the pawner,) bnt had belonged to the heir
hlQiseU at the time of the placing in pledge

(3 Grot, viii. 9)

Digitized by


VL Purchase and Sale.

VanDerLinden 226-236. 3 Grot, xiv.— xvii. V. D. Keessel 639-666.
18 Voet. i-vi. 19 Voet, i. iii. 21 Voet, i, iii.

1« ^IUhk or buying: is a contract wliereby one
ledefi&ed. person binds Iiimself for tlie transfer or war-

ranty of anything, and the other for pay-
ment of a certain price in money. (3 Grot. xiv. i.)

(i) .There must be the subjectmatter of the contract.

(a) Otherwise there is no sale.

^ emptio. (b) But there may be a sale of things in futufo and a

sale of expectancy, or spei Emptio^ Though crop
fails yet money is due. (V. D. Linden 227; 18 Voefc. i. 13)

(c) What is already one's own cannot be bought by
him (8 Grot, xiv 9 ; V. D. Linden 227.)

(d) Giotius gives following as saleable : (3 Grot, xiv. 973j

(a) Anything, freehold, feudal or emphyteusis, corporeal or
incorporeal, present or future.

()d) Inheritance.

(y) Jura in personam.

{d) Rents and annuities.

(e) Res litigosae, saving (V. D. KeeMd, 6S0) the rights of the
third party litigant.

(8) The price must be real and defined (V.D. Linden 227-228

Eee must 3 Grot. xiv. 23-26)

tvm^ver- (a) The price must be money, otherwise the transac-

"S^*/*^"^ tion is barter.

(b) The price must be recd^ otherwise the transac-
tion is a donation,

(c) The price must be definitely ascertained.

a) By the declaration of contracting parties.
) But not left exclusively to the discretion of contract-
ing parties.

(/) By the award of a referee. If referee is unwilling
to fix the price, the purchase is void for uncertainty.
Inutilis futura sit emptio tanquam ah arhitrii condicione
dependent, si tertius ille noluerit vel non potuetit
arbitrari. (18 Voet. i. 28.)

(d) Price must be cerium, jusium, verum, for money.
(Berwick's Voet. p. 27. note.)

(3) There must be mutual consent (V. D. Linden 228. 3 Grot. xiv.
14; 18 Voet. i. 37)

(a) Fraud, error, fear, etc., vitiate consent.

irror. (b) No one can be compelled to sell his property, even if

on has advertised (18 Voet. i. 3)

(c) Error does not vitiate contract if it is not error in
Mo corpore (in the entire identity of the thing) or
in substantia (in the material of the thing) or as
regards qualitas (legal status of the thing); and acddsn-
tat error does not affect con:ent (18 Voet i 5-6)


Digitized by




(d) Contract not aftected by error as to quantity. Si
quantitate erratum fuerit, valet quidem venditio,
ullo in casu ipso jure nulla est, (18 Voet, i 7)

Consensu determinato ad mercem et pretii
interposito, nihil ultra ad emptionis pe]
coB^i n^m desideratur, adeoque neque verba, neqi

traditio, neque scriptura. (18 Voet. i. 3. v. D. Lin<


(1) A writing may be necessary if so agreed upon. 1

(2) A conditional sale is not perfect until the condition tai
place (V. D. Linden 230.)

(a) Till fulfilment of condition sale is in abeyanJ
(3Grot. xiv. 29)

(b) On fulfilment of condition matter will have a retrc
pective eSect(/k'd).

(c) When purchase is stipulated to take effect on
panicular day, it is de facto completed, but executioa
suspended (lhid\

(d) Immoral conditions vitiate transaction (Jbid).

3. Consequence of the Contract. ''The eonsequeiM

of a sale are fulfilment, delivery and resclssioi

(3 Grot. XV. 1).

(1) Purchaser bound to pay purchase-money and to nil
good aU costs incurred on his behatf^ (3 Grot, xt
V. D. Linden 231.232).

Riskoftht (2) The risk of the thing sold is with the purchaser on ^
thing sold, completion of sale. (See 18 Voet. vi. 1. and the pithy notes

' Berwick^ s transl aion of Voet.)

(3) The risk is the puchaser*s before delivery though vend-^r
then owner and res 'pent domino, (Voet. ad loc,)

(4) Be/ore delivery buyer and seller have against each other onlj
personal action (V. D. Linden 230.)

(5) Seller bound to transfer property to buyer, by delivery ai
admission int > possession (V. D. Linden 23L 3 Grot. xv. 4.)

(6) The thing sold must be freie of all incumbrances (3 Grot. x?. J

(7) Fruits and profits accruing after purchase must be delivered

purchaser if only he has paid purchase-money (3 Grot xt.

(8) On warranty see notes to Berwick's Voet, (Bk. xxi. Title

21 Vuet. i. 11. enumerates respects in which Roman Lam
warranty differs from Roman-Dutch.

4. Rescission of Sale (V. D. Linden 234-236; 18 Voet. v. 3; Gw

xvii) takes place.

(1) By mutual release.

(2) When property perishes before completion of purchase.

(3) For seller's fraud, A sale founded on fraud on the part (fti

vendor, may be ref^cinded or rather declared void, even witi
out restitutio in inte^fumt in the ordinary action founded d
the contract itself (V. D. Keessel. 666\

Digitized by



(4) By seller's concealment of material defects.

(4) When the buyer or seller is prejudiced in more than half in
respect of purchase money. Parties are allowed to increase
or diminish price to real level,

(6) When anything is sold for ready money and payment does no



VII. Letting and Hiring.
V. D. Linden 236-242. 19 Voet. ii. 3 Grot. xix. V. D. K. 670-680.

Letting is an agreement whereby one party binds
himself to suffer another to have the use of a
certain thing, during a fixed and limited time,
in consideration of a certain term of money
which the other Muds himself to pay.

(1) The object of the agreement must be something capable of

being let on hire, movable or immovable, corporeal or

(a) Labour may be let. (3 Grot, xix. 4.)

(b) Usufruct may be let. (3 Grot, xix. 5.)

(c) Even what is altogether the property of another may
be let. (3 Grot. xix. 5. See 19 Voet. ii. 3-6)

(a) The lessor not being able to confer the use is liable
for damages. (Grotius)

(j3) The contract whereby any one hires what belongs to the
lessee either in absolute or qualified property, is null
and void. (Grotius)

(2) The hirer or lessee must be assured of use or enjoyment.
(V. D. Linden, 236).

(3) There must be a definite rent or hire, payable generally

in money. Payment may also be made in other things
capable of measure, number or weight, (8 Grot. xix. 6)

(4) There must be mutual consent,

(a) The agreement may be in express words ; and also
tacitly made, as in the case of the lessee remaining
in the enjoyment of a house after the expiration
of the lease. (3 Grot. xix. 2. 19 Voet. ii. 9). So Van
DerKeessel says that the letting and hiring of pro-
perty in town may be effected (r^«w, 670) even
without a writing and the lease of a house may be
continued (r/i««t«, 672) even by tacit consent,

(b) Tacit and express consent are discussed in 19 Voet. ii,
1. 2. 9-12. The summary of 19 Voet. ii. 11. is, af^d
nos nunc non ultra probAfae sunt tacitae locationum
conductiones in praediis rustids et urbanis,

(c) The letting of lands cannot be accomplished in
Holland, except coram lege iociy or by a writing signed
by the proprietor. (3 Grot. xix. 2). See 19 Voet ii. 2,
wherein the ruling of a Dutch edict of April 3rd.
1677 is cited as final, ne sine scriptura ac charta

Digitized by LjOOQ IC

19 Vo«t. U.

2, V.D.K.




of contract.


sigiUaia praediorum aut rerum quammoumque immo
bilium locaHo fiat But, says VanUerKeessel, the
common opinion of the interpreters of Dutch-Law,
that a lease of "country-property" is not valid
without a written instrument, cannot be supported
(r^m, 672)

(d) A lease of lands in longum tempus, even for more

than ten years, (but under 25), may be effected bj

private agreement (V. D. Keessel 673; 4 Van Lccawa

xxi. 9, See 19 Voet. ii. 1)

The contract is completed when the parties
agreed as to the subject <rf the contract and th
consideration. (3 Grot. xix. 7)

Lessor's obliKations.

(1) To give the lessee possession of the thing ltt| at the time fixed

(2) To maintain and keep the thing let in a proper state.

(3) To indemnify the lessee fur a 1 damages, occasioned by any
material defect in the thing let.

(4) To indemnify lessee against " Act of God " by reducing reni
proportional to loss and time of nori*user (3 Grot. xix. 12).

(5) To perform any particular covenant in the lease.
Lessee's obligations.

(1) To pay rents duly. The lessar may ejegt the lessee from the
house or land even within the time^ in case the lessee remaini
above two years in default (3 Grot. xix. 11.) for rents the
lessor has a lien on the crops and on the movables on the pre-
mises. This is a legal and preferent mortgage (V. U. Linden, 239}

^2) To use the thing let for no other purpose than for which it
was agreed upon. A lessee cannot convert pasture into arable
land, though in the first years of a long lease he may do so
(V. D. K. 680)

(3) To make good all losses caused by any other cause than
inevitable accident. (3 Grot, xix, 11)

(4) To perform all covenants in the lease.

(5) To return the thing let to the lessor at the expiration of
the time. But the lessor may eject the lessee if he required
his property in consequence of anv unforeseen necessity.
(3 Grot. xix. 11. V, D. Keessel, 675.'rfw6«.)

5. The contract is extinguislied (V. D. Linden, 240)

(1) When the thing let is, by unforeseen misfortune, distroyed.
(cf. above 3. (4)

(2) By merger,

(3) When lessee is ejected. (See above 4. (5)

(4) When the term of the lease expires. A lease is not void by

Lease COM ^^}^' ^^^ ^^^^ ^^^ ^^/^^^ ^^^' ^ ^^^^ ^°^s not necessarily ex-

before sale. pire on the death of the lessee ; but in the case of insolvency

(V. D. K. 676) it expires after a short delay, at the usual tern

for removal*


of leaiee for


qaence of

Digitized by VjOOQ IC

Master and


The hirinK of servants comes under tMs contract
Whoever dismisses his servant without lawful
cause, within the time, must allow him full
wages (3 Grot. xix. 13.) See below for Ceylon Labour

VIIL Mandate.


On remn-


V.D.K. 670.



Z, Orot. zii.
10. V. D.K.


(V. D. Linden 242-245, V. D. Keessel 680-583. 17 Voeti, 3 Grot, xii)

I. Mandate or commission is a contract whereby one
confides to another some matter which is lawful
either to transact the same for him or for
another, and the other accepts the same gratis*

(3 Grot. xii. 2.

(1) The thing must not be something past (3 Grot, xii 3)

There must be the intention of the parties to bind each other

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