OBLIGATIO′NES. Obligatio is defined (Inst. 3 13) to be "a bond of law by which we are under a necessity of releasing (solvendae) something according to the laws of our state." According to Paulus (Dig. 44 tit. 7 s3) the substance of an obligatio does not consist in this, that its object is to make any corporeal thing (corpus) or servitus ours, but that it shall bind another person to give us something, or to do something, or to secure or make good something (ad dandum aliquid, vel faciendum, vel praestandum). This "binding" is a "legal binding," that is, the party who fails to perform what he has engaged to do, is liable to legal compulsion; in other words, the duty which he owed may be enforced by suit or action. The duty must consist in something that has a pecuniary value, or may be estimated in money (Dig. 40 tit. 7 s9 § 2): if the duty is not capable of such estimation, it is not a duty which can be enforced by legal process. An agreement which cannot be enforced because it is not conformable to the principles of Roman Law, is not properly an obligatio, but still the Romans gave such agreement the name of Obligatio, when it was conformable to the principles of the Jus Gentium, and added the term Natureis, by which it is opposed to Civilis and Praetoria or Honoraria. Obligationes Civiles were those which produced a right of action according to the Jus Civile; Praetoriae or Honorariae were those which owed their force to the jurisdiction of the Praetor. In the wider sense Civiles Obligationes comprehend Honorariae, inasmuch as the Edicta magistratuum belong to Jus Civile in its wider sense. [Jus] This is the sense of Civiles when opposed to Naturales Obligationes: Civiles Obligationes have the narrower sense when Civiles, Honorariae, and Naturales are opposed among one another. Those obligationes, which were viewed as based on the Naturalis Ratio, were peculiarly considered as bonae fidei; and such obligationes were the foundation of bonae fidei actiones, of which the Roman Law recognised a limited number, as emti et venditi actiones; locati et conducti actio; mandati, negotiorum gestorum, tutelae actiones; commodati actio, and some others. The term strictum jus (Cod. 5 tit. 13) is opposed to bona fides; and stricti juris actiones are opposed to bonae fidei actiones. Viewed with reference to the facts on which the law operated to give Obligationes a binding force, Obligationes arose from Contract and Quasi Contract, and Delict (maleficium, delictum) and Quasi delict (Inst. 3 13). This division of Obligationes with respect to their origin was apparently viewed as exhaustive; though it is doubtful whether the Roman jurists really viewed every obligatio as included with one of these four divisions. For instance, it is doubtful whether the actio ad exhibendum was considered as an obligatio quasi ex contractu, or an obligatio quasi ex delicto. Gaius divides Obligationes into these: ex contractu and ex delicto; but he intends to comprehend the obligationes quasi ex contractu under those ex contractuobligationes quasi ex delicto under those ex delicto. In his Aurea (Dig.44 tit. 7 s1) he distributes obligationes as to their origin into obligationes ex contractu, ex delicto, and ex variis causarum figuris; and the ex variis causarum figuris comprehends the obligationes quasi ex contractu and quasi ex delicto; indeed the term is comprehensive enough to comprehend all others, whatever they may be.
As an example of an obligatio Re, Gaius mentions Mutuum [Mutuum]. Also, if a man received what was not due from a person who payed the mistake, the payer had his remedy for the recovery (condictio indebiti) just as if it were a case of Mutuum. But "this kind of obligation," observes Gaius (III.91), "does not appear to arise from contract, because he who gives with the intention of payment, rather intends to dissolve or put an end to (distrahere) a transaction (negotium), than to commence or to constitute (contrahere) a transaction."
The Obligatio Verbis was contracted by oral question and answer between the parties. The form of words might be:— Dare Spondes? Spondeo (Sponden' tu istud? Spondeo. Plaut. Capt. IV.2.117). Dabis? Dabo; Promittis? Promitto; Fidepromittis? Fidepromitto; Fidejubes? Fidejubeo; Facies? Faciam. The words Dare Spondes? Spondeo, were so peculiarly Roman that their legal effect could not be preserved, if their meaning was transferred into another language; nor could a valid obligatio with a peregrinus be made by the use of the word Spondeo (Gaius, III.93, 179). The evidence of such an obligatio must have been the presence of witnesses (Cic. pro Rosc. Com. 5).
It is to this form of contract by question and answer (ex interrogatione et responsione) that the terms "stipulari" and "stipulatio" refer. The word "stipulari" properly refers to him who asks the question: si quis ita dari stipuletur; Post mortem measurement dari spondes; vel ita, Cum morieris, spondes? The person who asked the question was Promissor, and he was said Spondere (Gaius, III.100, 105; Dig.45 tit. 1 s113 De Verborum Obligationibus). Sometimes the whole form of words which comprises the question and the answer, is comprehended in the term Stipulatio Dig.45 tit. 1 s5 § 1), and the participle "Stipulata" is sometimes used in a passive sense (Cic. pro Rosc. Com. 5).
A stipulatio which contained an impossible condition was invalid (inutilis). As the Stipulatio was p818 effected by words, it was a necessary consequence that the parties should have power to speak and hear, and on this ground was founded the rule of law that a mutus and a surdus could not be parties to a Stipulatio. As to the ability of Pupilli and Infantes with respect to Obligationes, see Impubes and Infans. The Stipulator might have another party to the contract on his behalf, who was called Adstipulator. The Adstipulator had the same right of action as the Stipulator, and therefore a payment in respect of the Stipulatio could be made to him as well as to the Stipulator; and the Stipulator had an actio Mandati against the Adstipulator for the recovery of any thing that he had received.
There were some peculiarities in the Adstipulatio. The right of action did not pass to the heres of the Adstipulator, and the adstipulatio of a slave for his master had no effect, though in all cases he could acquire for his master by stipulatio. The same rule of law appeared to apply to him who was in Mancipio, for he was servi loco. If a son who was in the power of his father, became his Adstipulator, he did not acquire any thing for his father, though he acquired for him by stipulatio. Still his adstipulatio gave the son a right of action, provided he was released from the father's power without a capitis deminutio, as for instance by the father's death or by being inaugurated Flamen Dialis. The same rule of law applied to a filiafamilias and to a wife in manu.
Those who were bound for the Promissor were called Sponsores, Fidepromissores, Fidejussores [Intercessio].
The Obligatio Litteris is illustrated by Gaius (III.128) by the instance of Nomina transcripticia, as when a creditor who has a debt due from a person in respect of a sale, or a letting, or a partnership, enters it in his book (codices, or tabulae expensi et accepti) as a debt (expensum illi fert: compare Cic. pro Rosc. Com. 4,5; expensum tulisse non dicit, cum tabulas non recitat). This was called Nomen transcripticium a re in personam. It was called transcriptio a persona in personam, when, for instance, "I have entered as due from you the debt which Titius owes to me, that is, if Titius has transferred or assigned (delegavit) you to me."
Cicero clearly alludes to this Literarum Obligatio in his Oration pro Roscio Comoedo. He says (c5), speaking of the plaintiff's demand: "his claim is for a certain sum of money (pecunia certa), and this must be either 'data' (a case of obligatio re) or 'expensa lata' (the Literarum Obligatio), or stipulata (an obligatio Verbis)."
Some difficulty arises about the mode of converting an obligation of a different kind into an Obligatio Literis. The subject is discussed by Unterholzner (Ueber die Rede des Cicero für den Schauspieler Q. Roscius, Zeitschrift, vol. I p248) in an ingenious essay, which, however, was written before the publication of the MS. of Gaius; and it has since been discussed by himself and by other writers. Unterholzner conjectured that a third party, with the consent of the debtor that a third party, with the consent of the debtor and creditor, made the entry in his own books; but there is no evidence in support of this assumption. Theophilus (ad tit. 1 De Lit. Oblig.) represents the Literarum Obligatio as a Novatio or a change of an obligation of one kind into an obligation of another kind, and this he says was effected both by words and writing (ῥήμασι καὶ γράμμασι). It was effected, according to him, by the creditor writing to the debtor (γράφειν ῥήματα πρὸς αὐτὸν) to ask his consent to the old obligation being made into a new one of a different kind, and by the debtor consenting. As stated by him the Obligatio Literis might be an obligatio contracted by a letter of the creditor to the debtor and the debtor's reply. In principle there would be no objection to its being contracted by the debtor's consent expressed by a subscription in the creditor's books. The Literarum Obligatio of Theophilus, however, rather seems to correspond to the other kinds of Literarum Obligatio referred to by Gaius (III.134), where he says "this obligation can be contracted by chirographa and syngrapha, that is, if a man writes that he owes a sum of money or will pay it; provided, however, there be no stipulatio on the same account." It is not impossible that Gaius means that the creditor might convert an obligation of another kind into that of pecunia expensa by the bare entry of it in his book; for it is no objection to this, as Unterholzner has it, "that a unilateral writing on the part of the creditor should have the effect of putting another person under an obligatio," for an obligatio was already contracted, which the creditor would have to prove, but if he could prove it, the law gave him all the advantage of a creditor for pecunia creta, if he had complied with certain forms. Gaius (III.137) certainly may be understood as asserting that this obligatio was contracted simply "expensum ferendo": but it seems to be the general opinion that this Literarum Obligatio required the consent of the debtor either orally in the presence of witnesses or by letter (Cic. pro Rosc. Com. 5; Val. Max. VIII.2 §2); and this is not inconsistent with Gaius, for though he says that the debtor is bound by the "expensum ferendo," that does not exclude his consent, but merely shows what is necessary in order to make the consent an obligatio literis.
The Obligationes Consensu were Emtio et Venditio, Locatio Conductio, Societas, Mandatum. All Obligationes by contract of course required consent and the evidence of consent; but "these obligationes," says Gaius (III.135), "are said to be contracted consensu, because no peculiar form of words or writing was required, but the consent of the parties to the transaction was sufficient." Accordingly such transactions could take place between persons at a distance from one another, but a verborum obligatio required the presence of the parties. The answer founded on these Obligationes consensu were Bonae fidei.
An Obligatio Civilis implies a right of action against the person who owes the duty (qui obligatur). This right of action (ex contractu) might be acquired by any person who was sui juris. It might also be acquired for him by those who were in his Potestas, Manus, and Mancipium; and by free men and slaves whom a man possessed bona fide, with certain exceptions. This right of action might also be acquired by a man through the acts of a free man who was his agent, so far that he could require the cession of the obligatio so acquired.
An Obligatio was terminated (tollitur) in various ways. The most common way was by payment (solution) of what was due. A man with the consent of the creditor might pay another's debt, but the two schools differed as to the legal consequence of such payment. The Proculiani as usual adhering strictly to fundamental principles maintained p819 that the debtor was still under his obligatio, but if the money was demanded of him by the creditor he had a good plea of dolus malus (exceptio doli mali).
An obligatio might be terminated by Acceptilatio. An obligatio contracted per aes et libram might be determined in the same way, and also one arising, "ex judicati causa." [Nexum.] An obligatio might also be determined by Novatio, which is the change of an existing duty (debitum) into another obligation, and the determination of the former obligation (Dig. 46 2 De Novationibus et Delegationibus). This is explained by the following instance (III.176):— If I stipulate that Titius shall give me what is due from you, a new obligatio arises by the intervention of a new person, and the former obligation is determined by being replaced by the latter; and sometimes a former obligatio may be determined by a subsequent stipulatio, though the subsequent stipulatio may be invalid.— If the stipulation were from the same person, it required the addition of something to effect a Novatio, as the addition of a condition, or a sponsor, or the circumstance of adding to or subtracting from the time contained in the terms of the covenant. As to the case of a condition, it was the law in the time of Gaius that there was no Novatio until the condition was fulfilled, and till that time the former obligatio continued. The opinion of the great jurist Servius Sulpicius as to the addition of a condition immediately effecting a Novatio, was not law in the time of Gaius (alio jure utimur).
An obligatio was also determined by the Litis contestatio, if the proceedings had taken place in a Legitimum judicium. It is stated generally under the article Litis contestatio and Legitimum judicium, what is the import of these terms respectively. The original obligation (principalis obligatio) was determined by the Litis contestatio, and the defendant (reus) was then bound (tenetur) by the Litis contestatio. If he was condemned, the Litis contestatio ceased to have any effect, and he was bound by the judgment (ex causa judicati). It was a consequence of these doctrines that after a Litis contestatio in a Legitimum judicium, a man could not bring his action on the original contract, for if his declaration or demand was Dari mihi oportere, it was bad (inutilis), for after the Litis contestatio the Dari oportere had ceased. In the case of a Judicium quod imperio continetur, the obligatio excavated and the action could be brought, but the demand might be answered by a plea (exceptio) of a res judicata or in judicium deducta. In the judicia quae imperio, &c., the exceptio rei judicatae corresponds to the condemnatio in the Legitima judicia, and the Exceptio rei in judicium deducate to the Litis contestatio (Keller, Ueber Litis Contestatio, p11, &c.; Gaius, III.180).
Obligationes arising from Contract passed by universal succession to the heres. There were no means of transferring Obligationes from the creditor to another person, except by a Novatio, which was effected by the assignee stipulating with the debitor with the consent of the creditor, the effect of which was to release the debitor from his former Obligatio and to bind him by a new one. If this novatio was not effected, the assignee could only sue as the cognitor or procurator of the assignor, and not in his own name (Gaius, II.38, &c.).
From the consideration of Obligationes arising from Contracts, Gaius (III.182) passes to the consideration of Obligationes "quae ex delicto oriuntur;" and these delicts which are the foundation of these obligationes, are Furtum, Furtum, Bona Rapta or Rapina,º Damnum and Injuria. All these obligationes he considers to be comprised in one genus, whereas the obligationes ex contractu are distributed into four genera.
The arrangement by the Roman jurists of Obligationes ex delicto with Obligationes ex contractu, was founded on the circumstance that both classes of Obligationes were the foundation of rights against a determinate individual or determinate individuals; but there is an important difference in the origin of the two rights. The rights ex contractu are rights founded on lawful acts; and rights ex delicto are rights founded on infringements of other rights.
The Obligationes quasi ex contractu are not enumerated by Gaius, but they are discussed in the Institutes of Justinian (3 27). These Obligationes do not properly arise either from contract or delict, but inasmuch as they are founded on acts, which are not delicts, they were considered as belonging to contract rather than to delict. Instances of these quasi contracts, enumerated in the Institutes, are "absentis negotiorum gestio" [Negotiorum Gestorum Actio], the "tutelae judicium," a "communis res sine societate," as when a thing had been bequeathed and given to several persons; and some other instances.
These quasi contracts are arranged in the Institutes of Justinian after Obligationes ex contractu; and the Obligationes quasi ex delicto are placed immediately after the Obligationes ex delicto. Instances of these Obligationes quasi ex delicto, enumerated in the Institutes (4 5), are, "si judex litem suam fecerit," and the case of "dejectum effusumve," and others. [Dejecti, &c.]
The nature of an Obligatio may now be more clearly understood. An Obligatio implies two subjects or persons at least, creditor, or he who has the right, and debitor, or he who owes the duty: these two terms, which strictly apply to creditor and debtor in the common sense, are also used to express generally the relation of the parties to an Obligatio. Obligatio (literally a binding) primarily denotes the facts by which the legal relation between the parties is established. It also denotes the duty or obligation owing by one of the parties to the contract (debitor) to the other party (creditor), if the obligatio is unilateral; and the duties mutually owing from the one to the other, if the obligatio is bilateral. The word, which, as opposed to obligatio or "binding," expresses the determination of such binding, is "solutio;" and generally some form of the word "solvo" is the appropriate term to express the legal termination of the obligatio. But inasmuch as duties owing by one party to the contract, or duties mutually owing by the parties to the contract, imply a right in the other party to the contract, the word obligatio is often used to express also the right which is established by the obligatio: and it is also used to express the whole relation between debitor and creditor. Thus, the right of the Creditor is spoken of as his Obligatio, and the duty of the Debitor as his Obligatio. There is no special name in the Roman law for a right against a determinate person or determinate persons. The p820 name for ownership is Dominium, to which is opposed the name Obligationes as descriptive of rights against determinate persons.
It is correctly remarked (Austin, An Outline of a course of Lectures on General Jurisprudence) "that in the writings of the Roman lawyers, the term obligatio is never applied to a duty which answers to a right in rem," that is, a right which is good against all the world. But as the duty answering to a right in rem is only the duty of forbearance, that is, of not doing anything to interfere with the right, there is no inconvenience in the want of a name: the right to the exclusive enjoyment of any thing (corpus) is ownership; all other people are not owners: as soon as an act is done which is an infringement of an owner's right, or in other words a delictum (in one sense in which the Romans use this word) an obligation arises by fore of such net (obligatio ex delicto) and gives the injured person a right of action against the wrong-doer.
A contractus required the consent of all the parties to it. Those Obligationes which were said to be founded on "consent" (consensus) were said to be so founded only because consent was sufficient (Gaius, III.136), and no peculiar form of words or expression was required; whereas in the Obligationes contracted "re," "verbis," and "literis," certain acts, words, or writing were required. In those contracts where particular forms were not required in order to convert them into Obligationes, any words or acts were sufficient, which were evidence of consent. Constraint by force or threats ( vis, metus), and fraud (dolus), and in many cases error (error, ignorantia), either render an agreement absolutely null, or give the party who has been constrained, deceived, or in error, various modes of defence against the claims of the other party.
An Obligatio, as already observed, supposes two persons at least. But there may be more than two parties to an Obligatio, either as creditores or debitores or both, all of whom are comprehended under the general name of Rei (Cic. de Or. II.43). With reference to a person who is under the same obligatio, a person may be called Correus. But when there are several parties to an obligatio, there are properly several Obligationes, and this is the case whether the creditor is one and the debitores are several, or the creditores are several and the debitor is one, or both the creditores and debitores are several. In the obligatio pro rata, the claims of the several creditores, or the duties of the several debitores, are determinate parts of a whole, which is made up by the parts being united in one formal obligatio. There are cases when several creditores may claim the whole (solidum), or several debitores may owe the whole (solidum): where a creditor claims the whole against several debitores, there are in fact several obligationes binding on several debitores. But if one creditor has recovered the whole, or one debtor has paid the whole, the entire Obligatio is at an end (Inst. 3 16(17)).
If an obligatio is unilateral, it only gives a right of action to one of the parties to it, as in the case of Mutuum, Stipulatio, and others; if it is bilateral, it gives a right to each party against the other, as emtio venditio, and locatio conductio.
The most general name for any agreement, the object of which was to establish legal relations between the parties, is Convenio, Pactio, Pactum Conventum, and its essence is consent: "conventionis verbum generale est, ad omnia pertinens, de quibus negotii contrahendi transigendique causa consentiunt, qui inter se agunt." (Dig. 2 tit. 14) Conventiones were juris gentium, and as a genus were divisible into species. Those Conventiones which were reducible to certain classes were called Contractus, of which the Jus Civile acknowledged the four kinds already mentioned, Re, Verbis, Literis and Consensu. Of those Obligationes which were established Re, the four which have been already mentioned, had special names, Mutuum, Commodatum, Depositum, and Pignus, and accordingly they have been called by modern writers Contractus Nominati. But there were other Obligationes which were established Re, for which the Romans had no particular name, and accordingly they have been called by modern writers Contractus Innominati.
These obligationes are founded upon something that has been given or done by one party, which gives him a claim against the other for something to be given or done in return. If the matter of the conventio was a civile negotium or had a civilis causa, it formed an obligatio, and was a foundation of an action "praescriptis verbis" or "in factum;" or as it is clearly expressed by Julian (Dig. 19 tit. 5 De praescriptis verbis, &c.), this is the actio "ad quam necesse est confugere, quoties contractus existunt, quorum appellationes nullae jure civili proditae sunt." All the events upon which these actions could arise were reduced the four following heads: "aut do tibi ut des, aut do ut facias, aut facio ut des, aut facio ut facias" (Paulus, Dig. 19 tit. 5 s5 § 1‑4). The bare agreement (pactum) both in nominate and innominate contracts is not sufficient to establish an obligatio: in both cases some act must be done to make the agreement become a contract, and to establish an obligatio. The nominate contracts have their particular names. The innominate contracts take the name of contracts from their resemblance to nominate contracts; but as they are not referable to any one of such contracts, they are formed into a separate lass: still some of them have special names. These contracts, as it will appear from the description just given of them, have their foundation in an act (of giving or doing) by one of the parties, and so far resemble contracts Re. The transaction is not completed so long as a thing remains to be given or done by the debitor; and the creditor may have his action (condictio) for the recovery of a thing which he has given, and for which the debtor has not made the return (a giving or an act) agreed upon. The creditor has also his action generally (praescriptis verbis) for the prefect of the city of the contract, if he prefers that, or for compensation to the amount of the injury sustained by its non-performance.
All other conventiones were simply Pacta, the characteristic of which is that they were not originally the foundation of actions, but only of pleas or answers (exceptiones); that is, if an agreement (conventio, pactio) could not be referred to some class of contracts, it did not give a right of action. When there was no civilis causa, there was no civilis obligatio created by such conventio, and it is added (Dig. 2 tit. 14 s7 § 4), "therefore a nuda pactio does not produce an obligatio but an exceptio;" whence it follows that a nuda pactio p821 is a pactio sine causa. Sometimes Nuda conventio is used as equivalent to Nuda pactio (Dig. 15 tit. 5 s15). It is a mistake to say that Pactum by itself means a one-sided contract. Pactum is a term as general as conventio (pactum a pactione — est autem pactio duorum pluriumve in idem placitum consensus, Dig. 2 tit. 14 s1), and is a part of all contracts as conventio is. There might be a Pactum or Pactio relating to mar, the establishment of a servitus in provincial lands (Gaius, II.31), and other matters. But Pactum as included in the law of Obligationes, obtained a limited signification; and it was used to signify agreements not included among the Contractus, but still binding agreements as being founded on some causa. A pactum therefore might produce a naturalis obligatio. Some of these pacta were in course of time made the foundation of an actio civilis, and some were protected by the Praetor: ait Praetor: "Pacta conventa quae neque dolo malo neque adversus leges plebiscita senatus-consulta edicta decreta principum neque quo fraus cui eorum fiat facta erunt servabo." (Dig. 2 tit. 14 s7) The parties to a Pactum were said "pacisci." Anything might be the subject of a "pactum" which did not involve an illegality. If an illegal pactum was made, it was still illegal, though it had been confirmed by a stipulatio or any other form. The matter relating to Pacta is not arranged in the Digest under the head of Obligationes et Actiones (Dig.44 7), but in the same book with the titles De Jurisdictione, &c.
Savigny shows that the notion of Agreement, (Vertrag), is too narrowly conceived by jurists in general. He defines agreement to be the "union of several persons in one concordant declaration of will whereby their legal relations are determined." Consequently the notion of agreement must be extended to other things than to contracts which produce obligationes: for instance Traditio or delivery is characterized by all the marks of an agreement; and the fact that the declaration of their will by the parties to the traditio, is insufficient to effect Traditio without the external act by which possession is acquired, does not in the least affect the essence of the agreement. The imperfect conception of an agreement has arisen from not separating in some cases the obligatory agreement from those acts for which such obligatory agreement is generally a preparation and of which it is an accompaniment. This becomes more apparent if we consider the case of a gift, which is a real agreement but without any obligation: it is merely a giving and receiving by mutual consent. This general notion of agreement is contained in the words of Ulpian already quoted, in which he defines Pactio to be "duorum pluriumve, &c. It does not seem however that the Romans applied the terms Pactio, Pactum, and Conventio to any agreements except those which were the foundation of Obligationes of some kind (Savigny, System des Heut. Röm. Rechts, III. § 140, &c.).
Pollicitatio is a proffer or offer on the part of a person who is willing to agree (pollicitatio offerentis solius promissum, Dig. 50 tit. 12 s3). A pollicitatio of course created no obligatio until the proffer or offer was accepted. The word is frequently used with reference to promises made by a person to a state, city, or other body politic, such as the promise to erect a building, to exhibit public shows, &c. Such pollicitationes were binding, when there was a causa, as a promise made with reference to a dignity (honor) conferred or to be conferred. A pollicitatio sine causa was also obligatory, if the person began to do what he had promised, as if he laid the foundation of a building or cleared the ground (see Plin. Ep. X.48. Huic theatro ex privatorum pollicitationibus multa debentur; and V.12).
A person who vowed anything, was also bound (voto obligatus).
(Gaius, III.88, &c.; Inst. 3 12(13), 4.6; Dig. 47 7, Cod. 4 tit. 10, De Obligationibus et Actionibus; Mühlenbruch, Doctrina Pandectarum, lib. III De Obligationibus. The most complete work on Roman Obligationes is by Unterholzner, Quellenmässige Zusammenstellung der Lehre des Römischen Rechts von den Schuldverhältnissen, Leipzig, 1840, 2 vols, 8vo.; see also Thibaut, Pandektenrecht; Vangerow, Pandekten, &c.; Puchta, Inst. vol. III).
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