PRELIMINARY TITLE New Civil Code: took effect on August 30, 1950 Chapter 1 Art 1.

This Act shall be known as the "Civil Code of the Philippines." (n) Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication. (1a) When laws take effect GR: 15 days after completion of publication in OG or in a newspaper of general circulation Exception: the law provides for its own date of effectivity Nature of Publication: 1. Mandatory 2. Complete Purpose: to inform the public of the full contents of the law Effect of Publication: The people are deemed to have conclusively been notified of the law even if they have not read them Coverage:  Presidential Decrees  Executive Orders  Administrative rules and regulations, if their purpose is to enforce or implement existing law pursuant to a valid legislation  Central Bank Circular and Executive Order if punitive in character

***DISCUSSION*** The counting of the 15days starts after the completion of the publication. Publication is indispensible. Period after completion of the publication can be shortened or lengthened. If the law is silent as to the period, Tanada vs Tuvera ruling provides that the 15day rule. 1986 Phil Vet Bank vs Judge Vega In cases “immediately upon approval”, the effectivity Sec10 of the law: law shall take effect immediately upon approval then it dispenses the requirement of publication. SC says that publication is not necessary. -> exception 1991 Which of the two prevails? Tanada Why? Reason#1: Tanada was decided by SC en banc (15 justices) Phil Vet Bank was decided by the SC in division (1 division consisting of 5 justices agrees) But equal weight pa rin whether en banc or in division ULTIMATE answer: Article 8 When the SC rendered a ruling, this ruling becomes a doctrine/principle in law. The doctrine cannot be reversed or modified except by a decision of the SC sitting en banc. Even if Phil Vet Bank was decided later than the case in Tanada. Reason#2: Stare Decisis – the decision on one case is binding on subsequent similar cases involving issues Obiter Dictum –side remark; statement made by the court which is not necessary in the resolution of the case; has no binding effect In Phil Veteran Bank, the issue on the lack of publication was not raised. Reason#3: Decision in Tanada is more consistent with the letter and spirit of Article2. The purpose of publication = due process If law Is not known We cannot expect people to comply with the law We cannot penalize the people

Requirement of Publication: 1. Official Gazette OR 2. Newspaper of general circulation Reckoning point of publication: newspaper is released One issue is sufficient! Coverage of the requirement: LAWS 1. Statute – laws promulgated by Congress (House of Rep and Senate_ 2. Presidential Issuances – PD, EO, MC, Letter of Instruction (President’s rule-making power) 3. Rules and Regulations promulgated by administrative bodies…. Admin Bodies – exercises delegated authority (SSS, LTO, LTFRB, DAR Admin Body) to implement an already-existing law… to fill in the details of that law *authority is only delegated (unlike that of the statute and Presidential Issuances) (Philippine International Trading Corporation vs __) Allegations: 1. PITC does not have the authority to ____ 2. The ___ is not valid because it was not published Answers: 1. PITC has the authority… pursuant to the Letters of Instructions issued by Marcos. 2. Rules and Regulations which are interpretative in nature and involve internal concerns only, ok lang kahit di i-publish. (Victoria’s Milling vs SSS) Victoria’s Milling vs SSS Issue: validity of the circular Argument: the circular wasn’t published daw Facts: Old law Compensation – remuneration …. New law (old law modified) Compensation – remuneration earned by the employee Held: Publication is not necessary. The circular is interpretative in nature. ->exception

4. Local Ordinances – publication may not be in the Official Gazette or in the newspaper of general circulation Under Local Govt Code: GR: Ordinance take effect 10days after posted in the bulletin board at the entrance of the provincial capital AND 2conspicious areas in the local govt unit concerned (church/market) Exception: Article 188 and Article 511 of the Local Govt Code (tax and revenue measures and penal sanctions) 5. Judicial Decisions – form part of the legal system; binding (De Roy vs CA) Facts: multiple physical injuries and death due to the collapse of the firewall Issue: de Roy seeking for an extension for filing of an MR invoking the case of (Habalyu vs _)_was not published Held: There is no law that requires judicial decisions of the SC to be published in the OG but it has to be published. It is the duty of the lawyer to keep abreast to the decisions of the SC located in the SCRA or law journals. Note: Judicial decisions clarify questions of laws…interpretation of the law…due process.

Art. 3. Ignorance of the law excuses no one from compliance therewith. (2) Principle ignorantia legis neminem excusat Exception when there is a mistake on a doubtful question of law (analogous to a mistake of fact) Rationale To prevent evasion of law * all persons are conclusively presumed to know the law as long as the laws had been duly promulgated. * all laws could easily be circumvented by invoking the convenient defense of ignorance of all which could hardly be overcome by contrary evidence as ignorance is a mental state Coverage ALL domestic laws 1. Civil or penal 2. Substantive or procedural 3. Mandatory and prohibitive laws Not covered 1. Foreign laws 2. Permissive or suppletory laws domestic laws Processual Presumption Philippine law applies when the party who claims the applicability of a foreign law (who has the burden of proof) has failed to discharge the burden. Ignorance of law Want of knowledge or acquaintance with the laws if the land insofar as they apply to the act, relation, duty, or matter under consideration Ignorance of fact Want of knowledge of some fact or facts constituting or relating to the subject matter in hand. It excuses or is a ground for relief.

***DISCUSSION*** -just the effect of Article 2 -convenience, public necessity -based on the presumption that everyone knows the law -otherwise, accused can conveniently say he’s innocent because he is not aware of the existence of the law -applicable only when the law is published Ignorance of the law vs Mistake of Fact Example: RPC: Mistake of Fact = not liable due to negligence Coverage: Local/National Law Yaoki (?) vs Aida Gonzales Yaoki testified that their marriage was solemnized in China and in Chinese laws, a marriage is valid even without the presence of a solemnizing officer. Is it acceptable in the Philippines? Is their marriage valid? Ruling: marriage is not valid

Art. 4. Laws shall have no retroactive effect, unless the contrary is provided.(3) GR: Laws shall have no retroactive effect Exception: 1. Penal Laws favourable to the accused who is not a habitual delinquent 2. Interpretative Statutes – laws intended to clarify or interpret a provision or provisions of an existing statute 3. Emergency Laws – laws intended to meet demands which require immediate action 4. Remedial Laws – provide for the methods of enforcing rights or obtaining redress for their violation a. Procedural Law may apply retroactively to pending proceedings even without any explicit provision b. Substantive Law cannot be given retroactive effect 5. Curative Laws – laws intended to correct errors or irregularities incurred in judicial or administrative proceedings, acts of public officers, or private deeds and contracts 6. Laws creating new rights – given the retroactive effect provided no vested right of same origin is affected (Family Code) 7. Tax Laws – because of the liabilities involved that should be settled 8. When the law EXPRESSLY provides.. EXCEPT: a. Ex post facto law b. When retroactivity impairs the obligation of contract

***DISCUSSION*** Laws should have prospective application. Prospective laws – operate on transaction, events or occurrence after the law has become effective. Retroactive laws – operate on facts occurrence or transactions already past Reason: due process Ex post facto law – unconstitutional, makes an act a crime and penalizes (or adds heavier sanctions) everyone who committed them in the past Exceptions to prospectivity: 1. The law provides the retroactivity 2. If favourable to the accused (People vs Patalin) Exception: When the accused is a habitual delinquent (defined art62 of RPC: within 10years from his last conviction of any crime, he is convicted again) When the law itself provides that its retroactivity cannot be applied to pending cases (Larga vs Ranada) When the accused himself disregards the later law which is favourable to him, and he wishes to be punished by the old law (Ferrer vs Pecson) 3. Procedural or Remedial Laws Remedial laws – laws that do NOT create rights Procedural laws – laws that do NOT create rights, provide for specific remedies, to enforce a right created by the substantive laws Substantive laws – laws that create rights (Zulueta vs Asia Brewery)1997 Rules on PROCEDURE (Tayag vs CA) Art 285 recognition, 4years upon reaching the age of majority Art 175 recognition only during the lifetime (Municipality of Coron) Retroactivity can only be extended… (1:31….) 4. Curative Laws – a healing law, to correct a defect or irregularity in the past (Frivaldo vs COMELEC)

* Retroactive Operation must be EXPRESSED in the statute itself Rationale to protect vested rights

REPEAL Modes: 1. Express – new law EXPRESSLY provides that it repeals an old law Effect: old law ceases to exist 2. Implied – does not specify the law being repealed Effect a. If there is inconsistency between and old law and the new law, the new law prevails 1. Applies in laws that are of the same nature 2. If old law is Gen and the later law is Special 1. NO REPEAL 2. both laws can stand together (Lichaoco & Co vs Apostol) RA 1762 general law and RA 1770 special 3. the latter law is merely and exception to the general law 3. If old law is a special law and there later is an enactment of a new law which is a general law 1. Special law prevails 2. Except when: a. There is clear, necessary and irreconcilable conflict between the two b. General law covers the whole subject matter of the special law (to replace the special law) Operative Fact – we cannot ignore the legal consequences of the past (period during which the recently declared void law was still in effect) (People vs Pimentel) Ruling: Exceptions to the Pimentel Ruling: 1. When the repealing law provides for a saving clause/transitory provision (Buyscano vs Military Police) There is no intention of the framers to free the person from being held criminally 2. Re-enacted Statute Situation – act punished under the old law (after being repealed) is still punished in the repealing law. Intention is not to decriminalize the person. No retroactive effect (People vs Venancio Concepcion)

Art. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. (4a)

Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. (4a) Right – legally enforceable claim of one person against another, that the other shall do a given act, or shall not do a given act Right vs Duty – Rights can be waived but duties must be performed Requirements for a Valid Waiver Person must actually have the right; the right must be in existence at the time of waiver Person must have the full capacity to make the waiver Waiver must be clear and unequivocal Waiver must not be contrary to law, public order, public policy, morals or good customs or prejudicial to a third person with a right recognized by law. When formalities are required, they must be complied with Reason One cannot waive what he does not have. If incapacitated, the waiver is defective for lack of free consent. When waiver is deprivation of right, it must not be favoured in case of doubt. Explicitly condition imposed by Art 2 which must be complied with Formalities are requirements for the validity of the act.

Art. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the courts declared a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (5a)

Kinds of Repeal 1. Express: when repealing law provides for a provision or a repealing clause explicitly stating that a particular existing law or part of a law is thereby repealed. 2. Implied: no repealing clause but the prior law and the subsequent law could not reconcile being substantially inconsistent with one another * Implied repeals are not favoured Requisites 1. Both laws cover the same subject matter 2. The latter law is repugnant to the earlier law Whether general or special or a combination When there is conflict between two laws and there is NO REPEALING CLAUSE in the later law 1. If both laws can stand together, there is no repeal 2. If both laws could not, there is an implied repeal. When there is conflict (Applies to laws that are of the same nature)  If old law is Gen and the later law is Special 3. NO REPEAL 4. both laws can stand together (Lichaoco & Co vs Apostol) RA 1762 general law and RA 1770 special 5. the latter law is merely and exception to the general law  If old law is a Special law and there later is an enactment of a new law which is a General law 1. Special law prevails 2. Except when: a. There is clear, necessary and irreconcilable conflict between the two b. General law covers the whole subject matter of the special law (to replace the special law)

Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. (n) * Judicial decisions are not laws but have the force and effect of laws. Jurisprudence – doctrines formulated by the decisions of the Supreme Court; amplify and supplement the written law * Decisions of CA which cover points of law still undecided may still serve as judicial guides to the lower courts. Validity of Decisions: Article VIII Sec14 “No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.” Stare Decisis Concept Requires the lower courts to follow the rules established in prevailing decisions of the Supreme Court Reasons: stability in the law Exception: o when precedent is soon found to be contrary to law, it must therefore be abandoned (because law is higher than a precedent) o when precedent has ceased to be beneficial and useful to society in the light of the changing conditions Obiter Dictum Concept opinion expressed by a court upon some question of law which is not necessary to the decision of the case before it; not binding

Revival of a Repealed Law (depends on the manner how the first law was repealed)  If L1 is repealed by IMPLICATION by L2, and L2 is itself repealed by L3, L1 IS REVIVED UNLESS otherwise provided by L3. If L1 is repealed EXPRESSLY by L2, and L2 is repealed by L3, L1 is not revived UNLESS expressly so provided.

Art. 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. (6) Guidelines in the rendition of decision 1. custom of the place shall be applied and in default thereof, the general principles of law (found in the old Civil Code) 2. decisions of foreign courts 3. opinions of known authors, professors 4. applicable rules of statutory construction 5. principles formulated in analogous cases * Where the law governing a particular matter is silent on a question at issue, the provision of another law governing another matter may be applied where the underlying principle or reason is the same. Applicability applicable only to civil cases Duty of Judge When Laws are Clear should follow its mandate and not tamper with it should apply the law without fear or favour DURA LEX SED LEX

Art. 12. A custom must be proved as a fact, according to the rules of evidence. (n) Custom – repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory Usage – repetition of acts Importance of Customs In cases where the law is obscure or insufficient to provide clear GUIDANCE on the resolution of the case Custom as an Obligatory Rule: Requisites (when the custom is not contrary to law, public order or public policy) 1. Plurality of acts or the acts have been repeatedly done 2. Generally practiced by the great mass of the social group 3. Duration 4. Accepted by the community as a proper way of acting General Principles of Law principles which serve as basis for positive law in each country Universal juridical standards dictated by correct reason Principles of justice beyond the variability and uncertainty of facts High standards which serve as a foundation to positive law Rules accepted by jurisconsults real axioms for all those who intervene in juridical life

Art. 10. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. (n) Reason To tip the scales in favour of right and justice Applicability ONLY if there is DOUBT

Art. 11. Customs which are contrary to law, public order or public policy shall not be countenanced. (n) * Customs cannot supplant laws

Art. 13. When the laws speak of years, months, days or nights, it shall be understood that years are of three hundred sixty-five days each; months, of thirty days; days, of twenty-four hours; and nights from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days which they respectively have. In computing a period, the first day shall be excluded, and the last day included. (7a) Count 1. One year – 365 days 2. One month – 30 days 3. One day – 24 hours 4. Night – sunset to sunrise 5. If months are designated by their name, they shall be computed by the # of days which they respectively have. 6. In computing a period, the first day shall be excluded and the last day included. (because the first day will not total to 24hours) When last day falls on a Sunday or Holiday 1. Not considered: when the act to be performed is prescribed or allowed a. By the Rules of Court b. By an order of the court c. By any other applicable statute 2. Considered: if the act arises from a contractual relationship Reason: contract is the law between the parties “Next Working Day”: Applicability  NOT APPLICABLE 1. Public sales or foreclosures 2. Trial dates fixed by the Court  APPLICABLE to Periods fixed by 1. Law 2. Rules of Court

Article 14, 15, 16, 17 Conflict of Laws in the Philippines Local Laws (Internal laws/Municipal laws) Applied when there is no foreign element Conflict of Laws Rules (Private International Law) Part of the local laws of a state Direct the courts or any admin bodies having quasi-judicial functions in cases involving foreign element whether or not to apply a foreign law Foreign Element: Involves facts, events, transactions occurring or pertaining to more than one state Article 14 and Art2 of RPC

Art. 14. Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in the Philippine territory, subject to the principles of public international law and to treaty stipulations. (8a) Principle of Territoriality Any offense committed by anyone within the territory of the country is an offense against the State. Extraterritorial Jurisdiction (Article 2 of RPC) 1. Offense while on a Philippine ship or airship 2. Forgery/counterfeiting of a. Any coin or currency of the Phil Islands b. Obligations and securities issued by the government 3. Acts connected with the introduction into our islands the obligations and securities in #2 4. Offense made by public officers or employees in the exercise of their functions 5. Crimes committed against national security and the law of nations

Generality – binding to who sojourns in Phil territory (aliens who stay in the Phil can be tried in our courts) Territoriality – courts in the Phil to try crimes committed within the territory of the Phil KINDS of Territoriality: 1. Subjected – has jurisdiction to try crimes and penalize persons who are guilty of committing a crime that began in our country but finished outside the country (People vs Tulin) 2. Objected – has jurisdiction to try crimes and penalize persons who are guilty of committing a crime that began outside but ended in the Philippines (US vs Bull) Protective Theory – the State whose interest is prejudiced by the crime has the jurisdiction to try the crime (People vs Tulin) Protective theory applies Tulin cannot say that he did not participate in committing the crime (US vs Bull) Bawal magtransfer ng animals without __

Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. (9a) NATIONALITY THEORY National law of the person is applied in matters involving personal relations. DOMICILIARY / TEERITORIALITY THEORY Law of the domicile is applied on matters involving personal relations. Status: designate the circumstances affecting the legal situation of a person in view of his age, nation and his family membership Condition: mode or state of being; state or situation; essential quality; status or rank Legal Capacity: - legal power to enter into binding obligations or to enjoy the privileges of a legal status - party is in the full exercise of his civil rights or has the character or representation that he claims Testamentary: to make a legally effective will Contractual: to enter into a legally binding contract Marital: to enter into a valid marriage [Vandorn vs Romillo] – foreign spouse obtains validly the divorce abroad, the Filipino is then freed from the marriage bond. Rationale A person is wholly bound to observe the laws of his native land, although he may reside in another and different country, BECAUSE such laws are MORE SUITED to his personal affairs. “Man’s activity is not limited and circumscribed within his native country.” Exceptions 1. Capacity to contract (involved real or personal property) -Art16 (Lex Rei Sitae) (where the property is situated) 2. Capacity of an heir to inherit -Art1039 (National Law of the decedent) 3. Capacity to make a will -Art17(Lex Loci Celebrationis) -forms under the extrinsic validity of the will

***DISCUSSION*** Nationality Theory ALL ISSUES pertaining to (see 00:47…) the Family rights, conditions, status or legal capacity = determined of the national law of the person involved Applicable both Filipino and foreigners (under their respective national laws) (Recto vs Harden) (Van Dorn vs Romillo) (Pilapil vs Ibay-Somera) -other countries adopt Domiciliary Theory

Art. 16. Real property as well as personal property is subject to the law of the country where it is stipulated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a) LEX REI SITAE / LEX SITUS Property shall be governed by the law of the place where it is situated lands and immovable in transactions like sale, lease, barter, mortgage, or any other form of alienation of property personal property Exceptions (LEX NATIONALI*) 1. Order of succession in intestacy (preference) 2. Amount of successional rights (amount) 3. Intrinsic validity of the provision of the will (effectiveness of the dispositions in the will) 4. Capacity to succeed (capacity to inherit) * Art. 1039. Capacity to succeed is governed by the law of the nation of the
decedent. (n)

Where our law refers a case to another country for solution but the law of that country refers it back to our country for determine LEX FORI Rule Law of the Forum (Processual Presumption) If the application of a foreign law is invoked, that foreign law must be proved as a fact by the rules of evidence. In the absence of proof, it is presumed to be the same as that of the Philippine law – the law of the forum.

***DISCUSSION*** First paragraph – conflict on laws rule on real properties Aspects: 1. Extrinsic validity of the contract  form 2. Intrinsic (essence)  Terms and contracts  Effects  Rights and liabilities  Interpretations of the terms and conditions of the contract 3. Capacity of the contracting parties Exception to Lex Rei Sitae 1. When property is merely incidental in the contract 2. Transfer of property through succession (intestate succession)

Reason The oneness and universality of the inheritance cannot be divided or broken up merely because of the different countries where properties of the estate are situated. (an alien cannot validly provide in his will that his properties be distributed in accordance with Philippine law) Applicability of Article 16 second paragraph When a legal or testamentary succession has taken place in the Philippines in accordance with Philippine law When to consult the foreign law ONLY in regard to the ORDER of succession or the EXTENT of successional rights Renvoi Doctrine “referring back”

Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have, for their object, public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (11a) LEX LOCI CELEBRATIONIS Matters bearing upon the execution, interpretation and validity of a contract are determined by the law of the place where the contract is made. * Refers only to the forms and solemnities of contracts (EXTRINSIC validity of contracts) Principle of Exterritoriality Extension of the territory of a country in another country to which extension is recognized under international law * Offices abroad are considered extensions of the territory of their country.

***DISCUSSION*** Conflict of law rule on contracts Refers only to the forms and solemnities of contracts Place where the contract was executed EXTRINSIC validity of a contract Does not include intrinsic validity of the contract Refers to an ordinary contract Does not apply when the place of the execution is incidental in the contract…so apply lex voluntatis, lex intentionis or the law of the place where (26:15…) If capacity: Article 15 Article 1319: offer made in one country and the acceptance made in another = place of the offer (knowledge of the offeror that the offer is accepted / meeting of the minds) What is the Philippine conflict of law rule on the intrinsic validity of the contract? -no specific -Article1306: Principle of Liberality of Contracts Parties are free to stipulate the terms and conditions of the contract To give effect to the intent of the parties Intrinsic validity 1. Determined by Lex Voluntatis (law intended by the parties) Choice of law clause “any dispute arising from this contact shall be governed by the laws of X” Limitation: parties cannot choose a particular law that has nothing to do with the contract… cannot pick which law (law ban i state A or state B) should govern Lex Voluntatis does not apply when..  No clause is provided in the contract  Parties choose a law that is not connected to the contract 2. Lex intentionis Apply the most significant relationship principle, circumstances of the case Law impliedly intended by the parties Law of the state which has the most significant relationship to the contract What if the most significant relationship cannot be determined?

Law of the state which would likely uphold the validity of the contract (consistent to the liberality principle of contracts)

Art. 18. In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code.(16a) If the Code of Commerce or special laws are insufficient or deficient, the Civil Code shall be applied to supply the deficiency.

APPLICATION OF THE CONFLICT OF LAW RULES OF THE PHILIPPINES 1. Problem of the renvoi – referring back – “international football” -physical referral of the case from the court of the Phil to the court of another country Revoi arises when… Eg case: domiciliary theory and “governed by the place where the decedent is a national” = succession (Edward vs Garcia) Solution: 1. If the forum court where the case is filed may choose to accept the referral, the forum court will have to apply the internal law of the forum. 2. If the forum court rejects the referral, the forum court will have to apply the internal law of the foreign country. (law being referred to is the internal law of the foreign country) Purely internal laws – not involving foreign element Conflict of law rule – involves foreign element In cases of Renvoi: our court should accept the referral 2. Problem on ______________ (42:33… - 46:00..) eg. Same sex marriage – public policy prevails Argument 1: Article 15 – Vandorn vs Romillo, Pilapil vs Ibay Somera, Recto vs Harden OR Argument 2: Artcile 17 – policy concerns While our country may recognize laws and judgment of a foreign country, we do otherwise when it is contrary to the well-established policy of the forum. Authority (Private International Law) Which prevails? WE DON’T KNOW…yet. No jurisprudence yet.

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