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TUTOR

TUTOR There were two forms of guardianship in Roman law, the tutela and the cura, which must be carefully distinguished. The difference between them is explained in the article CURATOR. According to the law of the Twelve Tables, persons not under patria potestas, who by reason of age or sex were incapable of acting for themselves, were under the protection of a tutor for their own interest and for the interest of those who might be their heredes. In the case of such persons a tutor supplied to some extent the place of a paterfamilias. (Cf. Paul. Frag. Vat. 304, “tutores quasi parentes proprii pupillorum sunt.” ) The protection of the tutela was given to impuberes and to women. A tutor derived his name “a tuendo” from protecting another. (Inst. 1.13, 2; cf. Isid. Orig. 10.264, “tutor: qui pupillum tuetur, hoc est intuetur.” ) The tutela or function of a tutor is thus defined by Servius Sulpicius, as cited by Paulus (Dig. 26, 1, 1): “Tutela est vis ac potestas in capite libero ad tuendum eum qui propter aetatem sua sponte se defendere nequit, jure civili data ac permissa:” “sua sponte” is probably an interpolation for “vel sexum,” which latter words would not be applicable when the tutela mulierum had become obsolete (Voigt, Zwölf Tafeln, § 110, n. 6).

The tutela was a kind of potestas, according to the old law; a power similar to the patria potestas, but of a much more restricted character. The power was to be used for the purpose of protection, and hence tutela implies duty (officium) as well as right. The object of this right and duty was in tutela (Gaius, 1.142; Cic. pro Rosc. Com. 6, 16); while, on the other hand, a person who was his own master was said suae tutelae esse (Dig. 32, 1, 50, 11; cf. Voigt, l.c., note 2). As to the classification of the different kinds (genera) of tutela, the jurists differed. Some made five genera, as Quintus Mucius; others three, as Servius Sulpicius; and others two, as Labeo. The most convenient division is into two genera,--the tutela of impuberes (pupilli, pupillae), and the tutela of women. The pupillus or the pupilla is the male or female who is under tutela.

Every paterfamilias had power to appoint by testament a tutor for his children who were in his power: if they were males, only in case they were impuberes; if they were females, also while the perpetua tutela mulierum existed, in case they were above the age of puberty (Gaius, 1.144). Therefore, if a tutor was appointed for a male, he was released from the tutela on, attaining puberty (fourteen years of age), but the female still continued in tutela, unless she was released from it by a special exemption, as by the Jus Liberorum under the Lex Julia et Papia Poppaea. A man could only appoint a tutor for his grandchildren, when they would not upon his death come into the power of their father. A father could appoint a tutor for postumi, provided they would have been in his power, if they had been born in his lifetime. A man could appoint a tutor for his wife in manu, and for his daughter-in-law (nurus) who was in the manus of his son. The usual form of appointing a tutor was this: “Lucium Titium Liberis meis tutorem do.” A man could also give his wife in manu the power of choosing a tutor (tutoris optio); and the optio might be either plena or angusta. She who had the plena optio might either choose a tutor who was to act for her in all her transactions, or might choose a tutor from time to time to act in particular transactions: she who had the angusta optio was limited in her choice to the number of times which the testator had fixed (Gaius, 1.150, &c.).

The power to appoint a tutor by will was either given or confirmed by the Twelve Tables. The earliest instance recorded of a testamentary tutor is that of Tarquinius Priscus being appointed by the will of Ancus (Liv. 1.34), which may be taken to prove this much at least, that the power of appointing a tutor by will was considered by the Romans as one of their oldest legal institutions. The nearest kinsmen were usually appointed tutores; and if a testator passed over such, it was a reflection on their character (Cic. pro P. Sextio, 52),--that is, we must suppose, if the testator himself was a man in good repute. Persons named and appointed tutores by a will are called by Gaius tutores dativi; in the legislation of Justinian tutor dativus means a tutor appointed by a magistrate (Dig. 46, 6, 7; Cod. 5, 30, 5), a tutor appointed by will being tutor testamentarius; those who were chosen under the power given by a will were tutores optivi (Gaius, 1.154).

If the testator appointed no tutor by his will, the tutela was given by the Twelve Tables to, the nearest agnati of the impubes, and such tutores were called legitimi. The nearest agnati were also the heredes in case of the impubes dying intestate and without issue, and the tutela [p. 2.910]was therefore a right which they claimed as well as a duty imposed on them. Perseus (2.12) alludes to the claim of the tutor as heres to his pupillus. A brother who was pubes was the legitimus tutor of a brother who was impubes; and if there was no brother who was pubes, the son who was impubes had his father's brother (patruus) for his tutor. The same rule applied to females also, till it was altered by a Lex Claudia, which abolished the tutela legitima of women. If there were several agnati in the same degree, they were all tutores. If there were no agnati, the tutela belonged to the gentiles, so long as the Jus Gentilicium was in force (Gaius, 3.17, and 1.164). Perhaps the agnatorum tutela legitima was created by the Twelve Tables, the tutela having previously devolved at once on the gens, if the impubes belonged to one. The tutela in which a freedman was with respect to his patronus was also legitima; not that it was expressly given by the words (lex) of the Twelve Tables, but it flowed from the lex as a consequence (per consequentiam, Ulp. Frag. tit. 11); for as the hereditates of intestate liberti and libertae belonged to the patronus, it was assumed that the tutela belonged to him also, since the Twelve Tables allowed the same persons to be tutors in the case of an ingenuus, to whom they gave the hereditas in case there was no suus heres (Gaius, 1.165).

If a free person had been mancipated to another either by his parent or coemptionator, and such other person manumitted the free person, he became his tutor fiduciarius by analogy to the case of freedman and patron. (Compare Gaius, 1.166, with Ulp. Frag. tit. 11, s. 5.) [EMANCIPATIO; FIDUCIA.]

If an impubes had neither a tutor testamentarius nor legitimus, he had one given to him in Rome, under the provisions of the Lex Atilia, by the praetor urbanus and the major part of the tribuni plebis (as to the date of this law, cf. Liv. 39.9); in the provinces in such cases a tutor was appointed by the praesides under the provisions of the Lex Julia et Titia, B.C. 31. [LEX JULIA ET TITIA.] If a tutor was appointed by testament either sub condicione or ex die certo, a tutor might be given under these leges so long as the condition had not taken effect or the day had not arrived: and even when a tutor had been appointed absolutely (pure), a tutor might be given under these leges until the will should take effect by the heres under it taking the inheritance; but the power of such tutor ceased as soon as there was a tutor under the testament,--that is, as soon as the testament took effect by the existence of a heres under it. If a tutor was captured by the enemy, a tutor was also given under these leges, but such tutor ceased to be tutor as soon as the original tutor returned from captivity, for he recovered his tutela Jure Postliminii.

Even before the passing of the Lex Atilia tutors were given by the praetor in other cases, as for instance, when the legis actiones were in use, the praetor appointed another tutor if there was any action between a tutor and a woman or ward, for the tutor could not give the necessary authority (auctoritas) to the acts of those whose tutor he was, in a matter in which his own interest was concerned. Other cases in which a tutor was given are mentioned by Ulpian, Frag. 11.

Ulpian's division of tutores is into Legitimi, Senatusconsultis constituti, and Moribus introducti. His legitimi tutores comprehend all those who become tutores by virtue of any lex, and specially by the Twelve Tables: accordingly it comprises tutores in the case of intestacy, tutores appointed by testament, for they were confirmed by the Twelve Tables, and tutores appointed under any other lex, as the Atilia. Various senatusconsulta declared in what cases a tutor might be appointed; thus the Lex Julia de maritandis ordinibus (Papia et Poppaea) enacted that the praetor should appoint a tutor for a woman or a virgin, who was required to marry by this law, “ad dotem dandam, dicendam, promittendamve,” if her legitimus tutor was himself a pupillus: a senatusconsultum extended the provision to the provinces, and enacted that in such case the praesides should appoint a tutor; and also that, if a tutor was mutus or furiosus, another should be appointed for the purposes of the lex. The case above mentioned of a tutor being given in the case of an action between a tutor and his ward, is a case of a tutor moribus datus; that is, appointed according to customary law. In the Imperial period from the time of Claudius, tutores extra ordinem were appointed by the consuls also.

Only cives or those who had the jus commercii could be tutores. Thus a person could not be named tutor in a testament, unless he had the testamentifactio with the testator, a rule which excluded such persons as peregrini. The Latini Juniani were excluded by the Lex Junia (Gaius, 1.23). Women could not be tutores. Filiifamilias could be tutores as well as paterfamilias. The tutela was a publicum munus, and hence persons were bound to serve when called on, unless they were under some incapacity or could excuse themselves on some valid legal ground: grounds of excuse (excusationes) were age, absence, the being already tutor in other cases, the holding of particular offices, and others which are enumerated in the Fragmenta Vaticana (123-247), and by Justinian in his Institutes (1.25).

The power of the tutor was mainly concerned with the property and pecuniary interests of the pupillus. The custody of the ward's person was generally assigned by the magistrate to one of his near relations, who might or might not be the same person as the tutor. The care of the child belonged to the mother, if she survived (custodia matrum, Hor. Ep. 1.1, 22; Dionys. A. R. 8.51; Liv. 39.9, 1; Sen. ad Marc. 24, 1), unless the father had otherwise disposed in his will. In a case mentioned by Livy (4.9), where the mother and the tutores could not agree about the marriage of the mother's daughter, the magistratus decided in favour of the mother's power (secundum parentis arbitrium). But it was the duty of the tutor to exercise a supervision over the pupillus, and to see that he was properly educated and cared for. (Cf. Dig. 26, 7, 12, 3: “Cum tutor non rebus dumtaxat, sed etiam moribus pupilli praeponatur;” Dig. 27, 2; Cod. 5, 49.) In respect of property the tutor's office was “negotia gerere et auctoritatem interponere,” though only the auctoritatis interpositio was absolutely essential to the notion of tutela; the administration [p. 2.911]of property (rem gerere) not belonging to the tutor of mulieres.

Auctoritatem interponere.--A pupillus who was an infans--that is, below the age of seven--could not perform any legal act. A pupillus (major infantia) could do no act by which he diminished his property without the sanction (auctoritas) of his tutor, but any act to which he was a party was valid, so far as concerned the pupillus, if it was for his advantage. Consequently a pupil could contract obligationes, which were for his advantage, without his tutor (Gaius, 3.107). Thus the natural act of the pupillus became, by auctoritatis interpositio of the tutor, a legal act; and thus the pupillus and his tutor formed one complete person, as to legal capacity to act. [INFANS; IMPUBES.]

No particular form was required for the expression of the tutor's auctoritas, but it had to be given by the tutor himself when the pupillus entered into the transaction which required it (in ipso negotio); it could not be transmitted by letter or by a messenger, and it had to be unconditional (Inst. 1.21, 2;--Dig. 26, 8, 8; 9, 5). It could, generally speaking, be withheld by the tutor of an impubes at his discretion.

Auctoritas was necessary in order to give legal effect to any act of a pupillus, by which he might suffer loss, but a pupillus might acquire rights for himself without auctoritas (Inst. 1.21, pr.). Thus a pupillus could not alienate his property without the concurrence of his tutor, but he could receive property by alienation to him simply by his own act; so too, though he could not contract an obligation without his tutor's intervention, he did not require auctoritas in order to bind others by a contract with him. The incapacity of the pupillus is shown by the following instance:--If his debtor paid a debt to the pupillus, the money became the property of the pupillus, but the debtor was not released, because the pupillus might suffer loss by releasing his debtor unless with the co-operation of his tutor; if, however, the pupillus afterwards sued for the debt, while still retaining the benefit of the payment which had been made to him, the praetor allowed the debtor an exceptio doli (Gaius, 2.84; Cic. Top. 11). [IMPUSES.]

As the act which was made valid by the sanction of the tutor was the act of the impubes, it follows that the auctoritas had no application in the case of a pupillus altogether incapable of performing an illegal act; and so, as an infant or person who had not completed his seventh year was thus incapable, it was not till a pupillus was major infantia that auctoritas could be given to his acts.

Rem gerere.--The tutor had the administration of the property of the pupillus (rem, negotium gerere), and was bound to exercise this part of his function according to the best of his ability. It was his duty to prevent the property of the pupillus from suffering any loss that he could avoid, and to make such profit from the property as it was fairly capable of. The tutor was liable to the pupillus not only on account of dolus, but also for such negligence as he did not show in the management of his own property (Dig. 27, 3, 1, pr.: “In omnibus, quae fecit tutor, cum facere non deberet, item in his, quae non fecit, rationem reddet hoc judicio, praestando dolum, colpam et quantum in rebus suis diligentiam” ). The obligation between the tutor and the pupillus was one of those arising quasi ex contractu (Inst. 3.27, 2). By an oratio of the Emperor Septimius Severus it was enacted that the tutor should be incapable of alienating praedia rustica and praedia suburbana of the pupillus, unless under an order of the magistrate; and this rule was extended to other property of the pupillus, excepting things of little value and superfluous things (Dig. 27, 9; Cod. 5, 71).

The principle of allowing the tutor to represent the pupillus in legal transactions was gradually admitted. If property was conveyed by mancipium or in jure cessio to a tutor as negotiorum gestor of pupillus, the tutor alone acquired legal ownership of it, but in course of time the praetor gave pupillus vindicatio utilis for the recovery of it. If property was conveyed by traditio to tutor on account of the pupillus, the latter acquired possession of it in the time of Justinian, and so direct ownership of it. [DOMINIUM] The tutor was first allowed to acquire choses in action for the pupillus in case of the pupillus infans having no slave, the pupillus being allowed to maintain a right thus acquired by actio utilis: this principle was extended to pupilli who were at a distance from the tutor, and finally was made applicable in all cases. It is to be remembered that a pupillus could always acquire rights through his slaves. A tutor could only bind the pupillus when authorised to do so by the magistrate. A tutor could maintain actions on account of his pupillus (Inst. 4.10, pr.; Gaius, 4.82).

In order to secure the proper management of the property of a pupillus or of a person who was in curatione, the praetor required the tutor or curator to give security; but no security was required from testamentary tutores, because they had been selected by the testator; nor, generally, from tutores appointed by a consul, praetor or praeses, for they were appointed as being fit persons (Gaius, 1.199).

The tutor might be removed from his office, if he was misconducting himself: this was effected by the accusatio suspecti, which is mentioned in the Twelve Tables (Gaius, 1.182; Dirksen, Uebersicht, &c. der Zwölf Tafeln, 599-604).

When the tutela came to an end, the actio tutelae directa could be brought against the tutor by the pupillus for a general account of the property managed by the tutor, and for its delivery to the pupillus, now become pubes. If the tutor was condemned in this action, the consequence was infamia. [INFAMIA] The Twelve Tables gave the pupillus a special action against the tutor in respect of fraudulent accounting; and if he made out his case, he was entitled to double damages. This appears to be the action which in the Digest is called actio de rationibus distrahendis. The tutor could claim to be indemnified for what he had expended or done in the interest of his pupillus, having the actio tutelae contraria against his late pupillus for the purpose of enforcing this liability.

When several tutores were joined in one tutela, the administration might be committed to one [p. 2.912]of them--called tutor gerens, as opposed to tutor honorarius. The tutor honorarius was liable, if he did not exercise a proper supervision over the tutor gerens, in case the loss could not be recovered from the latter. The tutela was terminated by the death or capitis deminutio maxima or media of the tutor. A tutor legitimus became disqualified if he sustained a capitis deminutio minima, which was the case if he allowed himself to be adopted (Gaius, 1.195; Ulpian, Fragm. 11, 13), since he thereby ceased to be an agnate of the pupillus, but capitis deminutio minima had no effect on the position of a tutor testamentarius or dativus. The tutela ceased by the death of the pupillus, or by his capitis deminutio of any kind. It also ceased when the pupillus attained the age of puberty, which in the male sex was fourteen, as the law came to be determined. [IMPUBES] In the time of the classical jurists, the tutela might cease by the abdicatio of the testamentary tutor; that is, when he declared “nolle se tutorem esse.” Under the law of Justinian the resignation of a tutor was in no case allowed, unless it was approved by the magistrate for some cause which appeared to him reasonable.

The tutela of a tutor was terminated, as we have observed, when he was removed from the tutela as suspectus, or when his excusatio was allowed to be justa; but in both of these cases a new tutor would be necessary (Gaius, 1.182). The tutela appears to have been regarded at first as having for its object the benefit of the tutor rather than that of the pupillus, as being a means of protecting the family property to which the tutor might succeed: but in later law the idea of duty (onus) rather than that of right attaches to the function. The duty became a public one (publicum munus), brought more and more under the supervision of the magistrate.

The tutela of women who are puberes requires a separate examination. A woman who was not in patria potestate or in manu viri was always under a tutela (in perpetua tutela), not being capable, like a man sui juris, of acting as she pleased on attaining the age of puberty, which was the completion of her twelfth year. The tutor of a woman who was pubes had not, however, the administration of her property, as in the case of an impubes; she managed her own affairs, but the auctoritas of a tutor was required in order to give validity to her acts in certain cases (Gaius, 1.190; Ulp. Fragm. 11, 1, 25: cf. Liv. 34.2, the speech of Cato for the Lex Oppia). The reasons for this restriction on the capacity of women are given by Cicero (pro Muraena, 100.12), by Ulpian (Fragm. 11, 1), and by Gaius (1.190); Gaius considers the usual reasons as to the law being founded on the weakness of the sex as unsatisfactory, since women above the age of puberty administer their own property, and the interposition of the tutor is a mere formality. The original object of the law seems to have been to prevent the alienation of her property, and so to secure the succession of her agnati or of her gens, who in early times would always have been her tutores. Gaius remarks (1.193) that, though in foreign states women were not under the same tutela as under Roman law, they are generally under a quasi tutela; thus the law of the Bithynians requires the contracts of a woman to be sanctioned by her husband or by a son above the age of puberty.

A mulier might have a tutor appointed by her father's testament; or by the testament of her husband if she was in his power (mansus). A wife in her husband's manus might receive from his will the tutoris optio or right of choosing a tutor for herself (tutor optivus) (Gaius, 1.150: cf. Liv. 39.19, 5), whereby the right of the agnates might be effectually excluded.

According to the law of the Twelve Tables, women who had no testamentary tutor were in the tutela legitima of their agnati; or, in the case of freedwomen and of emancipated daughters, in the tutela legitima of the patronus or of the parens manumissor. The tutela legitima of agnati was abolished by a law passed under the Emperor Claudius, called the Lex Claudia (Gaius, 1.157). The tutela of patroni was not included within the Lex Claudia. The tutela legitima of agnati and patroni over women could be transferred by in jure cessio, while that of pupilli could not (Gaius, 1.168); but it would seem that it was rather the exercise of the tutor's right than the right itself which was thus transferred, since it is said that on the death or capitis minutio of the tutor cessicius, the tutela reverted to the tutor qui cessit (Gaius, 1.170). A person might become tutor of a woman subject to a fiducia or trust as to the way in which he should exercise his right (tutor fiduciarius).

A tutor dativus was given to women by the magistratus under the Lex Atilia, when there was no other tutor, or under a senatusconsultum in the absence of a tutor or in case of a legis actio between a woman and her tutor (Gaius, 1.173, &c.; Ulp. Fragm. 11). By the Lex Julia, if a woman was in the legitima tutela of a pupillus, she might apply to the praetor urbanus for a tutor who should give the necessary auctoritas for the purpose of making a dotal settlement (Gaius, 1.178; Ulp. Fragm. 11, 20). The Vestal Virgins were exempt from tutela; and both ingenuae and libertinae were exempted from tutela by the Jus Liberorum (Gaius, 1.145, 194); it is to be remembered that a married woman would be in tutela if she were not in manu viri [MATRIMONIUM].

Octavia, the sister of Caesar Octavianus, and his wife Livia, were released from tutela by a special enactment (D. C. 49.318).

The perpetua tutela of women originated and long continued to exist for the purpose of protecting the agnatic family.

The agnatic tutela was in course of time allowed to be excluded not only by the testamentary disposition of a paterfamilias, or husband with marital power, but also by means of juristic contrivances (Cic. pro Mur. ch. 12). Thus, a woman for the purpose of escaping from the control of her agnatic tutor would enter into a fictitious marriage with some one, being conveyed to him by means of coemptio, with a fiduciary understanding (coemptio cum fiduciâ) that her supposed husband--the coemptionator or purchaser--should at once release her by remancipatio; she was accordingly remancipated [p. 2.913]by the coemptionator to some person of her own choice: this person manumitted her by vindicta [MANUMISSIO], and became her tutor fiduciarius (Gaius, 1.114, 115). Thus the woman passed by coemptio from her own family to another, her agnati losing all claims upon her, and her tutor fiduciarius might be compelled by the praetor to give his auctoritas to her acts (Gaius, 1.115; 2.122). The tutor legitimus might surrender his control of a woman to a tutor cessicius by in jure cessio. Finally, as we have seen, the agnatic tutela was abolished by the Lex Claudia, after which, except in the case of patroni and parentes, the perpetua tutela mulierum only remained a mere form.

The tutela of a woman was terminated by the death of the tutor or that of the woman; by a marriage by which she came in manure viri; by the privilege of children (jus liberorum); or by her becoming a Vestal Virgin. A woman had no right of action against her tutor in respect of his tutela, for he had not the negotiorum gestio, or administration of her property, but only interposed his auctoritas (Gaius, 1.191).

If a woman was in the tutela legitima of a patronus or parens manumissor, the tutor, Gaius tells us (1.191), could not be compelled to give his auctoritas, except for very weighty reasons ( “praeterquam si magna causa interveniat” ). Other tutores could be compelled to give their auctoritas, which in their case was a mere form. It is probable that agnatic tutors were in the same position as patroni and parentes,--that is, they were not compelled to give their auctoritas; but Gaius wrote after the agnatic tutela had been abolished.

The special cases in which the auctoritas of a tutor was required were, if the woman had to sue by legis actio or in a legitimum judicium, if she was alienating a mancipable thing [DOMINIUM]; a non-mancipable thing she might alienate without the tutor's sanction (Gaius, 2.80). Gaius (2.47) states that formerly, when a woman was under agnatic tutela, her mancipable things were not subject to usucapion, unless she herself delivered possession of them with the authority of her tutor, and that this was a provision of the Twelve Tables. In other cases;, if a res mancipi was transferred by tradition, the purchaser acquired the quiritarian ownership by usucapion [USUCAPIO]. The passage of Cicero (pro Flacc. 34, 84) is in accordance with Gaius; and another passage (ad Att. 1, 5), though vaguely expressed, is not inconsistent with his statement. (See Casaubon's note on the passage.) She could not manumit without the auctoritas of a tutor (Ulp. Fragm. 1, 17; compare Cic. pro Cael. 29, 68). The auctoritas of a tutor was not required, in the case of any obligatio by which the woman's condition was improved, but it was necessary in cases where the woman became bound (Gaius, 1.192, 3.108; Ulp. Fragm. 11, 27; Cic. pro Caecin. 25, 72). So, if a woman wished to promise, the auctoritas of a tutor was necessary (Cic. pro Flacc. 35). As a woman could alienate res nec mancipi without the sanction of a tutor, she could bind a person to her by lending money (mutuum), for by delivery the money became the property of the receiver.

A payment made to a woman was a release to the debtor; if, however, she did not receive the money, but affected to release the debtor by acceptilatio, this was not a valid release to him (Cic. Top. 11; Gaius, 2.83, 85, 3.171).

A woman could not make a will without the sanction of her tutor; the rules on this subject are stated under TESTAMENTUM If a woman was not subject to a tutor legitimus, but to a tutor of another kind, the praetor might perhaps in the time of Gaius give bonorum possessio to such will, although the merely formal requisite of auctoritas had not been complied with (Gaius, 2.121, 122: cf. 1.194, 195).

It may be questioned whether the auctoritas of a tutor was necessary in order to enable a woman to marry without passing in manum viri (see, however, Ulp. 11, 22; Cic. Clu. 5, 14); but it seems clear that such sanction was required in order to enable a woman to effect a confarreatio or coemptio (cf. Gaius, 1.115).

The tutela mulierum existed at least as late as Diocletian, A.D. 293 (Vat. Fragm. § 325). There is no trace of it in the Code of Theodosius, or in the legislation of Justinian. (Gaius, 1.142-200; Ulp. Fragm. 11, 12; Inst. 1.13-26; Dig. 26 and 27; Cod. 5, 28-75; Rudorff, Das Recht der Vormundschaft; Rein, Das röm. Privatrecht, p. 239, &c.; F. Minquet, Hist. jur. Rom. de Tut.; S. Szuldrzynski, de Orig. ac Progr. Tut. Mul.; Le Fort, Essai Hist. de la Tutelle; Voigt, Zwölf Tafeln, 2.110, &c.)

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