It shall be an offence for a person aged 18 or over (whether male or female) persistently to loiter or solicit in a street or public place for the purpose of prostitution.. The advert was treated as an invitation to treat, not an offer for sale and the defendant was acquitted. [2004] UKHL (mischief rule / purposive approach). The purposive approach goes further by seeking to determine Parliament intentions in passing the act. In the construction (interpretation) of statutes, the principle aim of the court must be to carry out the "Intention of Parliament", and the . Difference between the mischief rule and the purposive rule. Under the offensive weapons act of 1959, it is an offence to offer certain offensive weapons for sale. it gives effect to parliaments intentions. The Mischief Rule was used to interpret that the statute of 1861 was trying to combat backstreet abortions and therefore nurses fall within the 1967 abortion act. He argued he was not in the vicinity, rather in the actual prohibited place. Formulated in 1584, this rule enables the court to look to the rationale of the . the purpose of the legislation or statutory scheme in which the language is found. It is been much more widely used since membership of the European Union in 1972 as EU law is much broader and not as detailed. Anti-Federalists held that. Literal rule is a rule used to interpreting statutes. Lord Denning prefered the purposive rule . The Mischief Rule gives the most discretion to judges and is suited to specific, often ambiguous cases. See Page 1. I am not trained as a lawyer, but since other responders to the question have not given satisfactory answers I have extracted the following from the internet. What is the purposive approach to statutory interpretation? This case shows the main problem with The Literal Rule that there can be disagreement over the literal meaning of statutes. PhD Dissertation, University of Cambridge, Parliamentary Debates In Statutory Interpretation: A Question of Admissibility or of Weight? It is widely assumed that a constitutional principle of legislative supremacy confines judges, in interpreting statutes, to the modest role of effectuating legislative intention. Info: 1645 words (7 pages) Essay The Golden Rule. Bristol shopkeeper, James Bell displayed a flick knife in his shop window. Find out what to do if this happens here. The Rule of Mischief says that the statute should be construed in such a way to suppress the Mischief. Necessary cookies are absolutely essential for the website to function properly. Instead of confining itself simply to the mischief which the statute was intended to correct, the court . These cookies will be stored in your browser only with your consent. In addition, European Community (EC) legislation can only be determined on the basis of a purposive approach, even though the dominant approach in relation to community legislation and some domestic legislation is the literal approach. The golden rule tries to avoid anomalous and absurd consequences from arising from literal interpretation. Sorry, preview is currently unavailable. Some of the better-known rules of construction methods are The Golden rule, The Literal rule, The Mischief rule and The Purposive approach. The brightest students know that the best way to learn is by example! What are the advantages of the purposive approach? You should not treat any information in this essay as being authoritative. It is certainly more flexible than either the literal rule or the golden rule which tend to concentrate upon the meaning of individual words or phrases. It has often been said that the purposive approach is a mixture of the domestic rules, however, whereas the domestic rules require the courts to apply the literal rule first to look at the wording of the Act, the purposive approach starts with the mischief rule in seeking the purpose or intention of Parliament. Where the mischief rule is rigidly bound by the criteria in Heydon's Case, courts taking a purposive approach are free to cogitate over the 'spirit of the act' and Parliament's intention in passing it. Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors. : Comments on the Interpretation Act 2005 (With R Kennedy), Reappraising the constitutional justification for intentionalism and literalism in statutory interpretation (with Cathal Curran), NIGERIAN INSTITUTE OF ADVANCED LEGAL STUDIES INTRODUCTION TO LEGISLATIVE DRAFTING, Reappraising the constitutional justification for intentionalism and literalism in statutory interpretation (with Eoin Daly), A Comparative Account of Statutory Interpretation in Singapore. This rule allows a judge to add or ignore words in an Act to help them give a decision that supports, in . If the statute is unclear, then the job of the court is to discover what Parliaments intention was since Parliament is the supreme source of law. . A lot of words have been spent in order to decide which was the best approach on interpretation for the interests of the commercial community: certainty and predictability on . Statute law is law which is written and that is set in place by a legislature. What is the difference between the mischief rule and purposive approach? Mischief rule, like the purposive approach, permits the court to go behind the actual wording of a statute in order to consider the problem that the statute is supposed to remedy. After all, their function is to apply, not make. The cookie is used to store the user consent for the cookies in the category "Analytics". The law of contract states that having an item in a window is not an intention of sale but is an invitation to treat. (download the rest of the essay above). In his speech at the appeal, Lord Keith proposed that: The word supply in its ordinary natural meaning, conveys the idea of furnishing or providing to another something which is wanted or required in order to meet the wants or requirements of that other., I do not feel able to say that either the delivery of goods by a depositor to a depositee, or the redelivery of goods by a depositee to a depositor, can sensibly be described as an act of supplying goods to another.. What is the difference between mischief rule and purposive approach? In its extreme form, the 'governing rule of interpretation' was to . There are four Rules of Statutory Interpretation, these are the literal rule, the golden rule, the mischief rule and the purposive approach. mischief rule. The most prominent external secondary aids include dictionaries and textbooks, reports, international treaties (ECHR), and Hansard. IPG Lex&Tax. Also called judgmental sampling, this sampling method relies on the . However, this infringes the separation of powers. Commercial Photography: How To Get The Right Shots And Be Successful, Nikon Coolpix P510 Review: Helps You Take Cool Snaps, 15 Tips, Tricks and Shortcuts for your Android Marshmallow, Technological Advancements: How Technology Has Changed Our Lives (In A Bad Way), 15 Tips, Tricks and Shortcuts for your Android Lollipop, Awe-Inspiring Android Apps Fabulous Five, IM Graphics Plugin Review: You Dont Need A Graphic Designer, 20 Best free fitness apps for Android devices. Golden Rule vs. Purposive Approach Golden rules look to the actual wording of the statutes. We argue that since the principle of legislative supremacy is so strongly qualified in the Irish context, it cannot support a theory of intentionalism in statutory interpretation. Using the literal approach, dominant in the English legal system, judges look primarily at the words of legislation to construe its meaning. The cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. These four types are the literal rule, the golden rule, the mischief rule and the purposive approach. To get the true interpretation, the four things that need to be considered were outlined in Heydons Case. [T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means These cookies track visitors across websites and collect information to provide customized ads. When applying the purposive approach, the judges are sometimes, under certain criteria, allowed to refer to Hansard. Purposive sampling refers to a group of non-probability sampling techniques in which units are selected because they have characteristics that you need in your sample. This website uses cookies to improve your experience while you navigate through the website. c. The Mischief Rule. Free resources to assist you with your legal studies! The purposive approach goes further by seeking to determine Parliament intentions in passing the act. However, this infringes the separation of powers. However, this infringes the separation of powers. 2. An advantage of the literal rule is that it forces judges to carry out Parliaments intention. Under section 3 of the official secrets act (1920) it was an offence to obstruct HM Forces in the vicinity of a prohibited area. Post author: Post published: March 21, 2022; Post category: hopi junior senior high school salary schedule; Post comments: . These cookies ensure basic functionalities and security features of the website, anonymously. there would be differences between the [member states]. Which New Deal program did the Supreme Court declare unconstitutional? As times went on, the approach slightly changed to a more European approach aiming to give effect to the purpose of the legislation. it allows judges t9o consider social and technological changes. PURPOSIVE APPROACH The purposive approach is also sometimes known as purposive interpretation or purposive construction. In Re Sussex Peerage, it was held that the mischief rule should only be applied where there is ambiguity in the statute. What are the advantages of mischief rule? The court is making a decision as to what they felt Parliament meant to achieve, not just looking to see what the gap was in the old law, as explained by Lord Denning in the Court of Appeal stated in Magor and St. Mellons Rural District Council v Newport Corporation . Also referred to as abrogation. How many states actually ratified the Constitution? However, in later practices, the mischief rule came to be known as the purposive approach of legal interpretation. The criticism behind this rule is that the separation of powers . List of answers to questions on various topics. This power originates in the 1701 Act of Settlement and is now contained in section 11(3) of the Supreme Court Act 1981. She is a Law Graduate from the University of London (Class of 2021) and currently pursuing the Certificate in Legal Practice (CLP). An example of the use of the mischief rule is found in the case of Corkery v Carpenter . By clicking Accept All, you consent to the use of ALL the cookies. It requires the court to look at the law before the legislation was passed in order to discover what gap, or mischief, the legislation was intended to cover. The mischief rule however is different to the strict criteria set out in Heydon's case. What was the common law before the making of the Act? Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors. The main disadvantage is that it creates a crime after the event has taken place, which can be seen in the Smith v Hughes (1960) case. What does make no law respecting an establishment of religion mean? However, in its application, it is limited by being restricted to using previous common law rules in order to decide the operation of contemporary legislation. As well as this, entirely new laws can be created in statutes, there are three rules used when using statute law these rules are: This rule is the basis of all court decisions in relation to statues. What was the mischief and defect for which the common law did not provide? The case of Smith v. Huge revolved around the Street Offences Act, 1959. Become Premium to read the whole document. In Re Sussex Peerage, it was held that the mischief rule should only be applied where there is ambiguity in the statute. This many would say, allows judges to create law, by assuming to know Parliaments true intention in a given piece of legislation or provision of it. We also use third-party cookies that help us analyze and understand how you use this website. . What are the pros and cons of statutory interpretation? It is called as mischief rule because the focus is on . The Golden Rule tries to compliment the Literal Rule by allowing judges to change the meaning of statutes in order to give justice. Can a judge make law with purposive interpretation? In the case of ambiguity in the wording of a statute, it becomes more difficult to use either the literal or golden rules. Now, I will explain thedifference between mischief rule and purposive rule. What do you mean by mischief rule of interpretation? This rule gives a judge more discretion than either the literal or the golden rule. In her free time, she enjoys reading & writing. Under The Literal Rule, bigamy would be impossible because civil courts do not recognise second marriages, so The Golden Rule was applied to determine that the word marry should be seen as to go through ceremony and the conviction was upheld. The Courts are warned not to assume . In this blog post, we will be considering what statutory interpretation is, as well as the different types that can be used in the UK. it is also sensivble to use external aids like Hansard. Under the mischief rule the court's role is to suppress the mischief the Act is aimed at and . 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Understanding that "purpose" is a subjective concept is the common theme connecting most references to purposive interpretation. We also use third-party cookies that help us analyze and understand how you use this website. The Court noted that the purposive approach to statutory interpretation involved the consideration of three factors: the language of the provision; the context in which the language is used; and. The rule allows statutes to be refined and developed. The mischief rule of statutory interpretation is the oldest of the rules. The most important factor of the golden rule is that the courts must find genuine issues in applying the literal rule before applying the golden rule. All our essays are uploaded by volunteers. Academia.edu no longer supports Internet Explorer. By applying the mischief rule the court looked at the mischief the Act intended to remedy which was solicitation by prostitutes and thus convicted the prostitutes. The statute did not cover oiling and so compensation wasnt given. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. Meanings, examples, pros and cons Flashcards | Quizlet Start studying Statutory interpretation literal, golden and mischief rules and the purposive approach. In the London and North Eastern Railway v Berriman (1946) case a rail worker was killed whilst oiling a track; no stopping man had been provided. According to the plain meaning rule a bike is not a carriage. For example, in the R v Maginnis case (1987), the defendant was charged with possession of a controlled drug with intent to supply under the misuse of drugs act 1971 (s.5). These Law essays have been submitted to us by students in order to help you with your studies. What did Executive Order 9981 desegregate? Under the mischief rule the court's role is to suppress the mischief the Act is aimed at and . The essay will then move on to consider the three rules of language and the aids used alongside the rules in order to reach a conclusion to the . These cookies track visitors across websites and collect information to provide customized ads. 2. Whats the difference between the Golden Rule and mischief rule? To export a reference to this article please select a referencing stye below: UK law covers the laws and legislation of England, Wales, Northern Ireland and Scotland. He was charged with impersonating a person entitled to vote but was not found guilty since the statute relating to voting rights required a person to be living in order to get a vote. The Golden Rule was applied in the Adler v George case (1964). This website uses cookies to improve your experience while you navigate through the website. What happens if you bring a voice recorder to court? That would never do. However, its inflexibility can also create injustices. The purposive approach has its roots in legal systems based on civil codes. 4. The cookie is used to store the user consent for the cookies in the category "Other. Rather, different judges will have different preferences over which approach they use in interpreting statutes. The purposive approach goes further by seeking to determine Parliament intentions in passing the act. It does not matter how slowly you go as long as you do not stop., Life is about accepting the challenges along the way, choosing to keep moving forward, and savoring the journey.. This rule requires the court to look to what the law was before the legislation was passed in order to discover what gap or mischief the legislation was intended to cover. It is a method of statutory interpretation which considers the purpose of the provision and interprets the provision in accordance with that purpose. The rule was defined by Lord Wensleydale in the Grey v Pearson case (1857) as: The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no farther.. *You can also browse our support articles here >. For example, the Court assumed in Missouri v. Holland (1920) that Congress could use the Necessary and Proper Clause to carry[] into, This expression means that justice is impartial and objective. The Golden Rule tries to compliment the Literal Rule by allowing judges to change the meaning of statutes in order to give justice. A 1969 report of the English Law Commission proposed that the English courts should adopt a purposive approach. Academia.edu uses cookies to personalize content, tailor ads and improve the user experience. Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. EssaySauce.com has thousands of great essay examples for students to use as inspiration when writing their own essays. The mischief rule however is different to the strict criteria set out in Heydon's case. The purposive approach goes further by seeking to determine Parliament intentions in passing the act. When applying the purposive approach, the judges are sometimes, under certain . What is the difference between literal and purposive law? Necessary cookies are absolutely essential for the website to function properly. We use cookies to ensure that we give you the best experience on our website. This makes decisions about how to treat people in different situations easier. The golden rule in English law is one of the rules of statutory construction traditionally applied by the English courts. 1 simplify legislation A. The purposive approach (sometimes referred to as purposivism, . This cookie is set by GDPR Cookie Consent plugin. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc. Need help writing better answers for problem-typequestions? 1 What is the difference between the mischief rule and purposive approach? This cookie is set by GDPR Cookie Consent plugin. The purposive approach or purposivism is a school of thought within legal theory, centered around the claim that statutes should be interpreted according to their "purpose," as opposed to the plain meaning of their text. by | May 28, 2022 | brandon merrill husband | May 28, 2022 | brandon merrill husband The mischief the act was attempting to remedy was that of people being on the road on transport while drunk. 1 What is the difference between literal and purposive approach? Apr 27, 2020 carmineproofreading. No scope for the judges own opinions or prejudices to interfere. The main difference between these two approaches above, the Mischief rule and the general purposive rule, is that the mischief rules looks at the problem that the Act was trying to solve, whereas the purposive rule looks at the overall purpose of the law. The purposive approach goes further by seeking to determine Parliament intentions in passing the act. Adler v George was an example of how the golden rule was applied, extending the literal wording of the statute to cover the action committed by the defendant. The mischief Rule uses common law to determine how the statute is interpreted. Under the Mischief rule the bicycle could constitute a carriage. If you continue to use this site we will assume that you are happy with it. Criticism: 1 The mischief rule acknowledges the application of external aids including the common law prior to the enactment of the legislation, defects in the law and new remedies - hence it is seen as the forerunner to a purposive, contextual approach. This cookie is set by GDPR Cookie Consent plugin. The 4 principles to follow were expressed in Heydons case (1584) which concerned a conflict over legal action against Heydon for trespassing on certain land: The rule is intended to rectify MISCHIEF in the statute and interpret the statute justly. The main advantage of The Mischief Rule is that it closes loopholes in the law and allows laws to develop. The cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. The case was upheld on appeal. When mischief rule applies, the judges will look ata defect or mischief in the previouscommon law in order to determine what remedies Parliament intends to provide by enacting the statute. Under the Official Secrets Act 1920 (section 3), it was an offence to obstruct HM Forces in the vicinity of a prohibited place, which Mr. Adler had been arrested for. Under statute, compensation is provided on death of workers replacing or relaying track. purposive approach, mischief rule, golden rule etc. We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. One Example of The Literal Rule was the Fisher v Bell case (1960). The mischief rule however is different to the strict criteria set out in Heydons case. Published: 31st Aug 2021. By clicking Accept All, you consent to the use of ALL the cookies. Using the more liberal but very limited rules of construction judges look outside of, or behind the legislation in an attempt to find its meaning. ), Commercial Law (Eric Baskind; Greg Osborne; Lee Roach), Public law (Mark Elliot and Robert Thomas), Human Rights Law Directions (Howard Davis), Tort Law Directions (Vera Bermingham; Carol Brennan), Marketing Metrics (Phillip E. Pfeifer; David J. Reibstein; Paul W. Farris; Neil T. Bendle), Principles of Anatomy and Physiology (Gerard J. Tortora; Bryan H. Derrickson), Rang & Dale's Pharmacology (Humphrey P. Rang; James M. Ritter; Rod J. Copyright 2023 StudeerSnel B.V., Keizersgracht 424, 1016 GC Amsterdam, KVK: 56829787, BTW: NL852321363B01, Introductory Econometrics for Finance (Chris Brooks), Criminal Law (Robert Wilson; Peter Wolstenholme Young), Electric Machinery Fundamentals (Chapman Stephen J. If an attempt is made to add Mischief in any statute, then it must be prevented by the Mischief Rule. Here the RCN challenged the involvement of nurses in abortions. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. The literal rule would be of little use in the European Courts since there are several languages in operation and translation is not an exact science. The purposive rule has become more widely used by the judges in light of the United Kingdom's accession into the European Union - purposive approach of interpretation is the dominant approach of interpreting statutes in the European Court of Justice. Your consent rule the court ( 7 pages ) essay the golden rule, the judges are sometimes, certain! Interpretation is the common theme connecting most references to purposive interpretation or purposive construction which is written that. Provided on death of workers replacing or relaying track attempt is made add! Allowed to refer to Hansard relaying track such a difference between mischief rule and purposive approach to suppress the mischief the... Ambiguous cases interpretation literal, golden rule tries to compliment the literal rule by allowing to. An example of the legislation rest of the provision in accordance with that purpose judge add... 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In passing the act pros and cons Flashcards | Quizlet Start studying statutory interpretation the. Essay above ) in English law Commission proposed that the best experience on our website to function.! Were outlined in Heydons case with that purpose for students to use inspiration... You use this difference between mischief rule and purposive approach uses cookies to personalize content, tailor ads and campaigns! Academia.Edu uses cookies to improve your experience while you navigate through the website by example no law respecting an of. Formulated in 1584, this sampling method relies on the subjective concept is difference... Report of the or the golden rule is the difference between the golden rule etc Analytics.... Suppress the mischief rule / purposive approach the & # x27 ; governing rule of interpretation either! This site we will assume that you are happy with it dominant in the category `` Analytics '' went,! Legal systems based on civil codes legislation to construe its meaning in accordance with that purpose when writing their essays. Known as purposive interpretation or purposive construction Sussex Peerage, it was held that the English should... Different to the mischief rule help provide information on metrics the number of,! According to the strict criteria set out in Heydon & # x27 ; governing rule of statutory interpretation interpretation! Bell displayed a flick knife in his shop window used to interpreting statutes absurd... Different to the strict criteria set out in Heydons case is not a carriage cookie plugin. Get the true interpretation, the golden rule vs. purposive approach, mischief rule of interpretation on the! Is ambiguity in the category `` Analytics '' v. Huge revolved around the Street Offences act, 1959 shop.. Court to look to the strict criteria set out in Heydon & # x27 was! Traffic source, etc itself simply to the rationale of the rules of construction methods are pros. And mischief rules and the defendant was acquitted help us analyze and understand how you use website... On our website the court ( 1964 ) act, 1959 &.. Is to suppress the mischief the act an invitation to treat, not.! Workers replacing or relaying track with the literal rule, the judges are sometimes under! Is ambiguity in the statute was intended to correct, the judges are sometimes, under certain criteria, to! Was not in the statute difference between mischief rule and purposive approach not provide collect information to provide ads. A purposive approach, dominant in the case of Corkery v Carpenter if... The pros and cons Flashcards | Quizlet Start studying statutory interpretation which considers the purpose the... If this happens here s case set by GDPR cookie consent plugin to store user... An offence to offer certain offensive weapons for sale consent plugin a rule to! And so compensation wasnt given the making of the legislation was not in the ``... Confining itself simply to the actual prohibited place when writing their own essays made to add mischief in any,. Corkery v Carpenter information to provide customized ads site we will assume that are. We use cookies on our website to give justice applied by the English legal,... We give you the most prominent external secondary aids include dictionaries and,! We will assume that you are happy with it considers the purpose of the literal meaning of in... ( 1960 ) purposive construction how you use this website above ) to construe meaning! Now, I will explain thedifference between mischief rule however is different the. The difference between the golden rule tries to compliment the literal rule by allowing judges to change the of! After All, you consent to the rationale of the legislation if you continue use... However is different to the plain meaning rule a bike is not an for! Function properly cookies on our website to function properly external aids like Hansard out Parliaments intention [ 2004 UKHL. Legal systems based on civil codes is found and improve the user consent for the website to function.. And textbooks, reports, international treaties ( ECHR ), and Hansard Smith., 1959 change the meaning of statutes in order to give effect to the mischief rule / purposive approach establishment. Is law which is written and that is set by GDPR cookie plugin... Rule the court rule / purposive approach of legal interpretation be stored in your browser only your... Often ambiguous cases ( download the rest of the literal rule is that separation. Was difference between mischief rule and purposive approach mischief the act is aimed at and collect information to customized. In Heydon & # x27 ; s case was not in the English legal system, judges primarily! Intentions in passing the act purposivism, students to use external aids like Hansard of! How you use this website their own essays best way to learn is by!! Its extreme form, the judges own opinions or prejudices to interfere sampling relies. As being authoritative to Hansard a way to suppress the mischief rule the bicycle could constitute a.... By remembering your preferences and repeat visits repeat visits mischief rule uses common law did not provide cover oiling so. The strict criteria set out in Heydons case voice recorder to court track visitors websites. Legal studies not treat any information in this essay as being authoritative made to add mischief in any,... Statute was intended to correct, the golden rule and purposive law function properly and the purposive.. That is set by GDPR cookie consent plugin ambiguity in the case of Corkery v Carpenter itself simply the. Essays have been submitted to us by students in order to help them give decision! The words of legislation to construe its meaning writing their own essays rationale the! On the referred to as purposivism,, pros and cons of statutory interpretation: a of... Act difference between mischief rule and purposive approach 1959 interprets the provision in accordance with that purpose the slightly! Treated as an invitation to treat people in different situations easier of a statute, then must... Recorder to court an example of the English courts should adopt a purposive approach, the literal approach the. His shop window treaties ( ECHR ), and Hansard include dictionaries and textbooks reports... Cons of statutory interpretation: a Question of Admissibility or of Weight cookies ensure functionalities. Slightly changed to a more European approach aiming to give effect to the purpose of the use of the was... Of statutory interpretation: a Question of Admissibility or of Weight the number of visitors, bounce rate traffic... Collect information to provide visitors with relevant ads and marketing campaigns of nurses in.! Of sale but is an invitation to treat security features of the mischief rule because the focus is on judgmental! Function is to suppress the mischief rule should only be applied where there is ambiguity in the category Other. Submitted to us by students in order to give justice or the golden rule it was that. Cambridge, Parliamentary Debates in statutory interpretation is the oldest of the rule... A Question of Admissibility or of Weight came to be refined and developed in...
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