Penalty of Default – Part Two

In his substantiation for the riba penalty view of permissibility, Hadhrat Mufti Taqi Saheb states:

“This proposal is based on a ruling given by some Maliki jurists who say that if a debtor is asked to pay an additional amount in case of default, it is not allowed by Shariah, because it amounts to charging interest. However, in order to assure the creditor of prompt payment, the debtor may undertake to give some amount in charity in case of default. This is, in fact, a sort of Yamin (vow) which is a self-imposed penalty to keep oneself away from default. Normally, such ‘vows’ create a moral or religious obligation and are not enforceable through courts. However, some Maliki jurists allow to make it justiceable, and there is nothing in the Holy Qur’aan and in the Sunnah of the Holy Prophet (sallallahu alayhi wasallam) which forbids making this ‘vow’ enforceable through the courts of law. Therefore, in cases of genuine need, this view can be acted upon.”

THE RESPONSE:

(1) Assuming that this ruling of “some Maliki jurists” can constitute a valid basis for the capitalist practice of charging interest on late payments, it will still be in conflict with the Ijma’ of the Hanafi, Shaafi and Hambali Math-habs. It will also be in conflict with the consensus of the Jamhur (the overwhelming majority) Maaliki Fuqaha. It is in conflict with the Qur’aanic prohibition of riba. It is in conflict with all the Ahaadith prohibiting interest. It is in conflict with the fourteen century Ijmaa-ee prohibition which has been the accepted view of the entire Ummah.

(2) An isolated minority view is presented as a basis for justifying the essentially capitalist practice of riba.

(3) Such isolated and minority views may be accepted where a dire necessity (Dhuroorah) truly exists. Relative to the Muslim capitalist orientated bankers and financiers, there exists no Dhuroorah for diversion from the Ruling of the Jamhur Fuqaha of all Math-habs, especially on such a grave matter as legalizing the haraam act of riba.

Banks are institutions which earn billions. The comparatively small number of payment defaulters (i.e. those who make late payments) will not dent the huge income which banks earn. There is no ‘genuine’ need for this extreme measure as Hadhrat Mufti Saheb theorizes. The ‘need’ about which Hadhrat Mufti Taqi Saheb speaks of does not fall within the Shar’i definition of “Dhuroorah Shadeedah” (a real and true need without which life becomes extremely difficult).

The ‘need’ in this context is merely to provide more revenue for the bank owners who swim in wealth and whose business enterprises operate within the spirit of the western capitalist riba system. The comparatively speaking ‘little’ which the banks will earn by charging interest on late payments will not adversely affect them if denied to them.

Far from there existing a Shar’i Dhuroorah for legalizing riba on the basis of an extremely remote, minority view of some Fuqaha of another Math-hab, the measure is in fact exploitation and usurpation of the money of hard pressed debtors —of people who seek to acquire the good things of life by way of credit because they cannot afford to pay cash. The argument of ‘dishonesty’ has no validity in the endeavour to legalize interest on the basis of an obscure view of the Maaliki Fuqaah which, anyhow, the majority of Maaliki Fuqaha themselves reject.

(4) Even this minority of Maliki Jurists agree that charging the debtor an additional amount for default is riba. Hadhrat Mufti Saheb concedes this position of the minority of Maaliki Jurists whose support he takes, in the attempt to provide a Shar’i basis for the riba penalty view. Inspite of this admission, Hadhrat Mufti Taqi Saheb says:

“However, in order to assure the creditor of prompt payment, the debtor may undertake to give some amount in charity in case of default.”

This statement as it appears in the context of the full passage (quoted earlier) conveys the impression that some Maaliki Fuqahaa basing the interest question on self-imposed Yameen (Vow), have issued the verdict of permissibility for the imposition of a monetary penalty on a late-payer. However, this is misleading. Neither Al-Hattaab nor any other Maaliki Fuqaha have cited the example of ‘interest on late payments’. The Maaliki Fuqaha, not even the minority to whom Hadhrat Mufti Taqi Saheb has made reference, claimed that the interest penalty can be legalized on the basis of a self-imposed Yameen.

Hadhrat Mufti Taqi Saheb has incorrectly fitted his personal view into a context which leads readers to the conclusion that this specific example of interest penalty has been legalized by some Maaliki Jurists when in reality it is not so. The view of the interest penalty becoming lawful on the basis of a self-imposed vow is the opinion of only Hadhrat Mufti Taqi Saheb. This example is not given by Al- Hattaab. All the Maaliki Fuqaha unanimously condemn and ban interest on late payments.

To avoid confusing the view of permissibility with the Maaliki Fuqaha, Hadhrat Mufti Taqi Saheb should have clarified that the issue of permissibility of a monetary penalty (which is nothing but riba) is the product of his own istidlaal (deduction) which he had extracted on the basis of a qiyaas (analogical reasoning process) utilizing the basis of self-imposed vows which is a view held by a ‘small’ minority of Maaliki Fuqahaa — a view which is rejected by the Jamhur Maaliki Fuqaha and unanimously by all the other Math-habs.

The official and popular ruling of the Maaliki Math-hab as stated in all their kutub on the issue of self-imposed vows is:

“The Mash-hoor view of the Math-hab is that there shall be no court ruling (to enforce) it regardless of whether the institution (or the beneficiary) is stipulated or unstipulated. Thus, it appears in Kitaabul Hibaat of Al-Mudawwanah that if a man says: ‘My house is Sadqah for the masaakeen or for a specific man (whom he names)”, then he violates his vow, there shall be no court ruling against him (to enforce the self-imposed Sadqah).” (Tahreerul Kalaam fi Masaailil Iltizaam of Allaamah Al- Hattaab)

Although examples of differences are given, i.e. the minority Maaliki position is stated, regarding the enforcement by courts of selfimposed vows, the Maaliki Fuqaha, not even the minority, have not employed Shar’i Qiyaas (the Shariah’s process of Analogical Reasoning) to legalize a monetary penalty on those who make late payments. At no stage in its history, from its inception until now, did the Shariah ever legalize interest on the basis of any legal Fiqhi stratagem or principle. To the best of our knowledge, Hadhrat Mufti Taqi Saheb is the first in the ranks of our Ulama who has embarked on such a drastic step.

On the assumption that it does transpire that it is in fact a minority view of “some Maliki jurists”, then too, it has to be refuted since it is in flagrant conflict with the Qur’aan, the Sunnah, the views of all other Math-habs as well as in conflict with the Ruling of the Jamhur Maaliki Fuqaha. As such it may not be presented as a Shar’i basis for legalization of the capitalist riba penalty for late payments. This assumed isolated view cannot and should not be presented in negation of the Ijma’ of the Ummah on the issue of the prohibition of the riba penalty.

(5) The averment that “This is a sort of Yamin” or vow is untenable. Either it is a vow or not. It can’t be ‘a sort of a vow’, There is no inbetween category in the Shariah regarding vows. Furthermore, a vow is a voluntary act which should not be extracted by the application of pressure. Even if according to some opinion such a vow may be valid, the money extracted in this manner is not halaal since it is in conflict with the unequivocal prohibition stated in the following Hadith:

“The wealth of a Muslim is not lawful (for anyone) except with the happiness of his heart.”

The rationale of Hadhrat Mufti Taqi Saheb’s proposal envisages that:

According to some Maaliki Jurists the courts are entitled to enforce payment of Sadqah which a man has made incumbent on himself by means of a vow. The banks should stipulate that the debtor makes such a vow whereby he undertakes to give to charity a sum of money in the event he defaults in his instalments. This is like the vow which is enforceable by the courts in the event the debtor is unable to pay on due date.

The fundamental difference which has been overlooked is that the vow about which some Maliki jurists have ruled is a voluntary vow. It is a vow which pertains to acts of piety and goodness. It is not a vow to legalize a haraam act, viz., riba. It is a vow which is not a stipulation of a contract to acquire credit facilities.

On the other hand, the ‘vow’ which the debtor is constrained to make is extracted from him under duress. Secondly, the charge the debtor is obliged to agree to is a riba penalty which cannever be legalized. All the Mathhabs categorically and emphatically prohibit this riba charge on late payments. Hence, the stratagems resorted to in the endeavour to circumvent this prohibition are not permissible. There is no goodness in this circumvention.

The circumvention only serves to entrench a cruel practice of the Yahood capitalist system. This practice as mentioned earlier comprises two constituents:

(1) Exploiting the debtor by slapping riba on him.

(2) Blacklisting him as a punishment to deprive him from future credit facilities. Both these acts run counter to the benign commands of the Qur’aan which in this regard are also twofold:

(i) Grant the debtor an extension of time or even write off the debt.

(ii) Protect his name and honour.

Banks and financiers, be they Muslims, arbitrarily presume all payment defaulters to be crooks and dishonest. This capitalist attitude is adopted to justify the blanket ruling of the riba penalty on all defaulters. This arbitrary presumption is conceded by Hadhrat Mufti Taqi Saheb inspite of him postulating the theory of only punishing dishonest defaulters, an attainment which is not practical by his own admission.

There is a vast difference between a self-imposed vow and a ‘vow’ which a man is constrained to impose on himself as a consequence of external factors, the primary one being the pressure exercised by the creditor on whom the debtor considers himself to be dependent for the procurement of his need. It is highly improper to utilize a legal procedure as a stratagem to negate the spirit and teaching of the Qur’aan and Sunnah. The reprehensibility of a legal stratagem is not cancelled by its legal effect, e.g. three talaaqs issued in a single session remain reprehensible notwithstanding the legal validity of the talaaqs.

Stratagems for circumvention of Shar’i restraints may be employed for only the aims and purposes of the Deen, not for worldly and nafsaani goals as is the case with the endeavour to legalize the riba penalty on the basis of a self-imposed yameen (vow) stratagem, and that too a view held by a small minority of Maaliki Fuqaha in opposition to the Jamhur Maaliki Fuqaha and the Ijma’ of all the other Mathhabs on the Qur’aanic and Sunnah prohibition of riba. Lest it be forgotten, we reiterate that the minority Maaliki view pertains to enforcement by courts of self-imposed vows on issues of piety, not on the question of legalizing the interest monetary penalty.

(6) There is absolutely no such need to invoke the Shar’i principle of Dhuroorah. The ‘genuine need’ is a figment of the capitalist economic theory. There will have to develop a truly dire and severe need for the invocation of the Shar’i principle of Dhuroorah to legalize – 35 – the grave crime and sin of riba.

PRESSURIZING THE DEBTOR

Hadhrat Mufti Taqi Saheb avers:

“The proposal is meant only to pressurize the debtors on paying their dues promptly…”

Hadhrat Mufti Saheb has admitted with clarity that his proposal of riba penalty is a device for the application of pressure on the debtor. It is this pressurization which is haraam. It negates the basis of Teebe- Nafs (Happiness of the Heart) which the Hadith says is the only basis for taking the wealth of a man. In the absence of Teeb-e-Nafs, Rasulullah (sallallahu alayhi wasallam) said that the wealth of a man is “not lawful”.

In view of this categoric prohibition declared by Rasulullah (sallallahu alayhi wasallam), the following suggestion of Hadhrat Mufti Taqi Saheb is improper and unacceptable to the Shariah:

“Since the penalty undertaken by the client is originally a selfundertaken vow, and not a penalty charged by the financier, the agreement should reflect this concept. Therefore, the proper wording of the penalty clause would be on the following lines…..”

The wording of the ‘penalty clause’ does not restore the element of Teeb-e-Nafs. Regardless of the riba concept being reflected in the wording and the debtor’s signature gained under duress, the riba is not legalized. The stratagem is baseless and does not achieve the goal of transforming the riba into the effect of a vow. Whereas the motive for the true Vow is the Pleasure of Allah Ta’ala and the obtainal of thawaab, the ‘vow’ employed as a stratagem in this context is underlined by a sinister agenda which is the obtainal of monetary gain—a gain which the Shariah has made haraam — a gain which is acquired by exploitating the debtors and usurping their wealth.

It is a stratagem to introduce into the Shariah a practice of the capitalist economic theory— the practice of charging interest on late payments.  The proposal is nothing other than this, and the procedure outlined by Hadhrat Mufti Saheb does not confer Shar’i credibility to it, for it remains haraam riba.

THE INCONGRUITY OF THE ‘VOW’

Hadhrat Mufti Taqi Saheb says:

“Being a vow of charitable act, it was originally permissible for the client, to give the stipulated amount to any charity of his choice, but in order to ensure that he will pay, the charitable account or fund maintained by the financier/bank is specified in the proposed undertaking. This specific undertaking does not violate and principle of the Shariah.”

What has cancelled this original permissibility? Which factor has the force to abrogate the Shar’i permissibility? Does the Shariah classify this permissibility into ‘original permissibility’ and ‘ultimate permissibility’ or a permissibility of any other kind? Hadhrat Mufti Saheb has not stated the grounds for restricting the unrestricted Shar’i permissibility which a man enjoys in relation to the distribution of his wealth in any avenue of charity allowed by the Shariah.

The only cause Hadhrat Mufti Saheb advances for fettering the unrestricted permissibility allowed by the Shariah is “to ensure that he will pay”. This presupposes that the debtor will not pay the penalty of riba which he has undertaken to pay by way of the stratagem of a vow. In this presupposition is further confirmation for our claim that the ‘vow’ is not self-imposed. Rather it is imposed on the debtor by the bank/financier, hence the avenue of expenditure is specified to ensure that the money is extracted from the debtor, be it against his wishes. Thus the essential requisite of Teeb-e-Nafs for the lawfulness of the wealth of a person is lacking in the supposedly self-imposed vow.

Hadhrat Mufti Saheb has further restricted the ‘original’ permissibility of the owner to divert his charity to whichever channel he desires, on the basis of his supposition. The fear that the debtor will not voluntarily pay the riba penalty which he has been induced to agree to by means of the fallacious ‘vow’ has led Hadhrat Mufti Taqi Saheb to curtail the unrestricted permissibility the Shariah gives a man in the choice of charitable institutions to which he wishes to contribute his Sadqah. Yet, for this restriction Hadhrat Mufti Saheb has not produced any Shar’i basis. His basis is pure opinion—opinion unbacked by any Shar’i principle or tenet.

An individual’s opinion, be he an Aalim of the Deen, is devoid of Shar’i force and substance if it is not substantiated on the basis of Shariah principles or even a teaching of the Shariah. When the Shariah allows a man to divert his charity to any valid charitable institution, it is highly improper to restrict this general permission and shackle it with restrictions based on personal opinion for the sake of a riba penalty. Hadhrat Mufti Taqi Saheb contends that

“this specific undertaking does not violate any principle of the Shariah”.

In fact, it does violate the Shar’i principle that what the Shariah has left unrestricted may not be restricted by personal opinion. For example, the Shariah regards as valid the marriage of a 15 year old adult (male or female) who had entered into the Nikah without parental consent. It is not permissible to restrict this general permission of the Shariah with a personal opinion which lacks a Shar’i basis in the way the so-called Muslim Personal Law clique perpetrates.

Another example, is that the Shariah grants unfettered legal permission for a man to marry four wives. This unrestricted permission may not be curtailed by personal opinion to regulate polygamy as the deviated liberals are guilty of. In the same way, the permission which the Shariah gives for distribution of Nafl Sadqah is unfettered. There is no specified avenue of charity which is obligatory on the contributor. Hadhrat Mufti Saheb’s restriction on this unfettered permission by specifying the charitable institution (the bank in this case), is an excess committed against the Shariah, hence invalid.

Besides all this, the qiyaas of Hadhrat Mufti Taqi Saheb is decidedly faasid (corrupt and baseless) both morally and juridically. Morally it is faasid because it is exploitation and runs in diametric conflict with the Qur’aan’s exhortation to grant the debtor extension of time and/ or to waive the entire or part of the debts.

Juridically (from the Fiqhi point of view), the qiyaas is faasid because it violates fundamental conditions for the validity of Qiyaas. That fundamental condition (Shart) is that the expediency for which the ruling is required (the Maqees or the Fara’) must not be a mansoos alayh hukm of the Shariah. Riba is haraam by such Nusoos which are of the Qat’i class, i.e. the proofs are absolute in certitude, being of the highest category of Shar’ proof (Qur’aanic aayaat and Mutawaatir Ahaadith).

(7) Another grave error of exceptional proportion committed by Hadhrat Mufti Taqi Saheb is the unjustified exercise of Udool Anil Maslak (Diversion from the Maslak or Math-hab) without valid Shar’i reason. The Fuqaha of all Math-habs unanimously stipulate that the validity of Udool (Diversion) is dependent on Dhuroorah Shadeedah (an extreme and a real need which necessitates Udool Anil Maslak), without which life will become most difficult. No one’s life will cave in if the bankers are not allowed to charge interest on late payments.

(8) Another grave error which Hadhrat Mufti Saheb has committed is to resort to Udool Anil Maslak without even taking into consideration the conditions which render this Diversion valid. The one such condition has already been mentioned in No.7 above. The other condition which Hadhrat Mufti Taqi Saheb ignores in his endeavour to incorporate a Maaliki view, albeit erroneously, into the Hanafi Mathhab on this particular issue of enforcement by courts of self-imposed vows —the view of the minority Maaliki Fuqaha— is that such court enforcement will be valid only if the Haakim (the Qaadhi/Judge) had ruled that the self-imposed liability by way of a vow was valid in the Shariah. If the Islamic court had ruled initially that the selfimposition is valid, then it will have the right to enforce the self- 39 – imposed liability, otherwise not.

However, in the case of the monetary penalty, the very vow will be in conflict with the Shariah since it undertakes to legalize what the Shariah has made haraam, viz. interest. The prospects of the court thus enforcing such a vow which is in violation of every aspect of this Deen of Islam are therefore nil.

(9) Another important consideration in the discussion of the validity of the self-imposed oath/vow is the issue of enforcement by the court. Purely for the sake of pursuing this argument a bit further, the question arises: What type of court in this age will enforce the execution of the demands of a Shar’i act? A Yameen is an act of ibaadat. It is a Shar’i act and a decision has to be given against a Muslim. In this age for which Hadhrat Mufti Taqi Saheb proposes the monetary penalty and other issues, there are no Shar’i courts. There are no Islamic Qaadhis who have the necessary jurisdiction and authority to administer the Shariah. The only courts existing all over the world are kuffaar courts. Even if the judge happens to be some faasiq and faajir judge, it remains a court of the kuffaar.

The presence of a Muslim judge does not transform the court into a Shar’i court. The judge, even if he is a born Muslim, is under compulsion to interpret and to issue verdicts in terms of the laws of the kuffaar government which he is serving. The judge has no relationship with the Shariah. We need say no further than this for everyone to understand the invalidity of the present-day courts. There is no true Islamic or Shar’i court to administer in accordance with the Shariah.

THE FINAL NAIL

The invalidity and prohibition of the riba penalty will be better understood by analogy with the criminal act of ghasab (usurpation or taking wilfully someone’s property without his consent).

The usurped item is termed maghsoob and the usurper is called ghaasib. The Shariah’s law regarding ghasab does not reward the owner of the maghsoob for his suffering in consequence of the ghaasib’s criminal act of having usurped the item/property. Even if the ghaasib derives benefit from the maghsoob, a monetary penalty cannot be imposed on him. Thus, if a man usurps the vehicle of another person, uses it as a taxi, earns income from it and later returns the vehicle or the owner repossesses it, no monetary penalty may be imposed on the ghaasib.

A man usurps the house of someone. He occupies it without the consent of the owner or in flagrant violation of the owner’s refusal and demand for the property to be returned. By some stratagem, legal or otherwise, the ghaasib thwarts the owner and rents out the house for a whole year, deriving substantial haraam income. Finally the owner manages to evict the ghaasib. But, the Shariah does not allow a monetary penalty to be imposed on the ghaasib for his act of ghasab nor is the owner entitled to the benefit allowed by the capitalist system, viz., occupational rent.

A man by force seizes a large amount of money from someone. The ghaasib invests the maghsoob money in a lucrative business enterprise and earns substantial income. After a considerable time the owner manages to gain the return of his usurped money. The Shariah does not allow a monetary penalty to be imposed on the ghaasib. The owner of the money cannot claim any monetary compensation for the ghasab and the misuse of his wealth.

Hadhrat Mufti Taqi Uthmaani Saheb accepts this position of the Shariah and even makes reference to it in his book. Let us now examine the riba penalty on late payment of debt in the light of the Shariah’s attitude and ruling pertaining to the act of ghasab.

In the act of usurpation (ghasab) the possession of the usurped item by the ghaasib is without the consent of the owner. The ghaasib derives substantial benefit from the maghsoob (usurped item). But the Shariah disallows the imposition of a monetary penalty on the ghaasib. The Shariah also disallows monetary compensation for the owner of the maghsoob. Allah’s Wrath settles on the ghaasib for his criminal act of ghasab. The ghaasib has the Waajib obligation of restoring the maghsoob to its rightful owner immediately, without the slightest delay. Every moment of procrastination (matl) in restoration of the usurped item is sinful for the ghaasib.

In response to this grave crime, Islam heavily applies the Moral code. Thus Rasulullah (sallallahu alayhi wasallam), warning the ghaasib of the dire consequences in the Aakhirah of his act of ghasab, said:

“He who usurps one cubit (the size of a hand) of ground (belonging to another person, will find that) on the Day of Qiyaamah the size of the ground right down into the bowels of the seven earths, will be strung around his neck.”

“The person who usurps (i.e. takes unjustly and by oppression) a cubit of (someone’s) land, will be swallowed in consequence by the earth until he reaches the dregs of the seven earths (i.e. the earth will suck him down until he reaches the very last point in the bowels of the seven earths).”

“He who usurps (anything) is not of us (of this Ummah of Islam).”

Note the severity of the warnings and the threat of the punishment for ghasab. Ghasab was a problem since time immemorial. The Shariah took cognisance of it, but sought to combat this crime with only its Moral Code. Allah’s Law does not allow the imposition of a monetary penalty on the ghaasib nor compensation for the aggrieved and wronged owner of the maghsoob.

On the contrary, we see that debt is incurred with the happy consent and agreement of the owner of the item. A valid lawful agreement is entered into by the parties. When the creditor find’s that his debtor failed to pay on due date, he hears Allah Ta’ala exhorting him in the Qur’aan: “If he (the debtor) is in difficult straits, then grant (him) time until he is able to pay.”

The creditor also hears the Voice of Allah Azza Wa Jala, saying:

“And if you (O Creditor!) (write off the debt) as Sadqah, then that is best for you.” (Qur’aan)

Rasulullah (sallallahu alayhi wasallam) further assures the creditor that he will gain 16 times more reward than Sadqah if he patiently waits for payment of the money owed to him. Then to crown all this, the Shariah categorically prohibits a monetary penalty on late payments, describing it as riba for which Allah has issued an Ultimatum of War.

Despite the Shariah’s emphatic prohibition of the imposition of any monetary penalty on the ghaasib irrespective of the benefits he has gained from the usurped property, and inspite of the emphasis Allah Ta’ala and His Rasool placed on leniency with the debtor and granting extension of time and the wonderful rewards for such extension, Hadhrat Mufti Taqi Uthmaani Saheb deems it appropriate to saddle the Shariah and burden the debtors with a monetary penalty acquired from the capitalist economic system which is a system of men who stand only like those who have been driven to insanity by the touch of Shaitaan because they devour riba, and they say: “Bay’ (trade) is like riba.”

This analogy is the final nail to seal the coffin of riba penalty for late payments — a practice spawned by the capitalist theory of economics.

SUMMARY

Hadhrat Mufti Taqi Uthmaani Saheb has opined that interest on late payments should be paid and that such payment is permissible. For his opinion Hadhrat Mufti Saheb has been able to cite only a rare Maaliki view of some Maaliki jurists. This view does not claim that interest on late payments is permissible. The rare view pertains to a voluntary, self-imposed vow to give Sadqah.

According to some Maaliki jurists payment of this type of Sadqah in certain cases only is enforceable by the courts of law (i.e. by truly Islamic courts of law), not by kuffaar courts.

Hadhrat Mufti Saheb has attempted to liken the interest penalty to this type of self-imposed Sadqah. But this attempt is palpably erroneous.

There is no difference of opinion in the Ummah regarding the prohibition of interest (riba). The penalty charged on late payments is without any doubt interest, pure and simple.

The system of punishment for payment defaulters which Hadhrat Mufti Taqi Saheb proposes is not new. It is the capitalist system as has been explained earlier on.

The interest penalty is in diametric conflict with the teaching and spirit of the Qur’aan and Hadith which instruct that the debtor be given time to pay, and better than extension of time is to waive the entire debt.

There is absolutely no scope in the Shariah for the permissibility of interest on late payments. Interest in all aspects and forms is haraam.

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“Those who devour riba do not stand except as one whom Shaitaan has driven to madness with (his) touch.” (Qur’aan)

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