i will put all question in and review outline in two diffrent document please do them all correct and goodBUSINESS LAW 2 – COURSE OUTLINE TEST 3
PROFESSOR GILMORE
Agency Law
Agency: A legal relationship in which one party is legally authorized to act on another party’s
behalf. The parties to the agency relationship are the principal and the agent. To be a principal,
one must have the necessary capacity to create contracts.
Principal: The party who is being represented by the agent.
Agent: The party who is acting for the principal in a representative capacity.
The agency relationship is either that of an employer and employee, or that of an employer and
independent contractor. The difference between the relationships will determine whether the
principal is liable for the agent’s wrongful acts during the course of the agency.
Criteria for Employee Status:
1) The employee is subject to the employer’s control.
2) The employer sets the employee’s work schedule.
3) The employer controls how the employee actually does the job.
4) The employer can impose a dress code.
5) The employer is required by law to withhold taxes from the employee’s gross pay.
Criteria for Independent Contractor Status:
1) The independent contractor is his own boss.
2) The independent contractor is usually self-employed.
3) The independent contractor controls how he does his job.
Principal’s Liability
If the agent commits a tort (a civil wrong) during the regular course of the agency, the principal
will be liable if the agent is an employee. (Example: Professor Jones sexually harasses a
student during working hours at State University.) However, if the agent commits a crime during
the course of the agency, the principal will not be criminally liable unless the principal was a coconspirator or accomplice in the crime (Example: a cab driver, driving drunk, runs a red light and
kills a pedestrian. The owner of the cab would be civilly liable for wrongful death, but would not
be found guilty of vehicular homicide.)
If the agent is an independent contractor, however, the principal will NOT be liable for the
agent’s wrongful acts, either civilly or criminally.
Duties of Agent to Principal
1) Performance: The agent is duty bound to do his job to the best of his ability based on his
training and experience.
2) Notification: The agent is duty bound to notify the principal of any relevant information
pertaining to the agency. By law, any information received by the agent during the regular
course of the agency is automatically presumed to be received by the principal. (Example:
Professor Gilmore catches a student cheating on a test and reports the information to the
department chair. Hint, hint.)
3) Loyalty: In acting on the principal’s behalf, the principal’s interests always come first. The
agent cannot intercept an opportunity intended for the principal and use the opportunity for his
own benefit.
4) Obedience: The agent is duty bound to follow the principal’s lawful instructions in performing
his job.
Duties of Principal to Agent
1) Compensation: Since there is no more involuntary servitude, the principal must compensate
the agent for services rendered. (“Pay Up”)
2) Cooperation: The principal must allow the agent to do his job and must also provide any
assistance that is reasonably necessary for the agent to do his job.
3) Provide safe working conditions: The principal must provide the agent with the necessary
working conditions in which the agent can properly and safely do his job. The principal is also
duty bound to notify the agent about any unsafe work areas.
4) Reimbursement/Indemnification: If the agent incurs reasonable out of pocket expenses
during the course of the agency, the principal must reimburse the agent for those expenses.
The principal, however, is not required to reimburse any expenses incurred as a result of the
agent’s negligence or misconduct.
Agent’s Authority to Act
Actual Authority
1) Express Authority: The principal, either orally or in writing, gives the agent the authority to act
in clear, unmistakable, unambiguous language.
2) Implied Authority: The agent’s authority can be implicitly created by:
a) The position that the agent occupies, or
b) The agent’s doing whatever is reasonably necessary to carry out his express authority.
Apparent Authority
Apparent authority is the principal, by words or conduct, causes a third party to reasonably
believe that the agent has the authority to act. Thus, apparent authority is directly related to
how the surrounding facts and circumstances appear to that third party.
Ratification
Ratification is the principal’s giving approval to an agent’s act that was previously unauthorized.
Once such an act has been ratified, that act or transaction now becomes binding on the
principal, meaning that the transaction is no longer voidable.
Termination of the agency
By acts of the parties
1) Mutual Agreement: The same way that contracting parties can agree to rescind a contract,
the principal and agent can also agree to cancel their agency relationship.
2) Termination by only one party:
a) Renunciation of authority: The agent voluntarily ends the agency relationship (“I quit”).
b) Revocation of authority: The principal unilaterally severs the agency relationship (“You’re
fired”)
3) Lapse of time: The specific time period for which the agency was to last has now expired.
4) Purpose achieved: The specific reason for which the agency was originally created has been
fulfilled.
By operation of law
1) Death or Mental Incapacity of either the principal or the agent. (Example: If Prof. Gilmore gets
run over by a street sweeper and is killed instantly, he has a pretty compelling reason for not
coming to work tomorrow.)
2) Impossibility: The agency cannot be completed under ANY circumstances. (Example #1:
Gilmore enters into a contract to become a surrogate mother…something that can never
happen…for obvious reasons.)
(Example #2: A real estate broker won’t be able to sell a client’s house because the house
burned down in a fire)
3) Bankruptcy of either the principal or the agent.
Introduction to UCC Sales and Lease Contracts and Warranties
Most tangible items are considered goods. From early times, merchants developed their own
set of rules and customs that controlled contracts and disputes. In England, these evolved into
the Law Merchant courts that were eventually absorbed into the common law. Because of the
intricacies of dealing with commercial contracts, the U.S. passed the Uniform Sales Act in the
early 1900s. As we continued to industrialize, the Act become outdated, and the National
Conference of Commissioners on Uniform State Laws promulgated the Uniform Commercial
Code which covers most aspects of commercial transactions.
Uniform Commercial Code (UCC)
The UCC is a model act divided into articles, with each article establishing uniform rules for a
facet of commerce. It is continually being revised to reflect changes in modern commercial
practices.
Landmark Law: Uniform Commercial Code (UCC)
The UCC is a model act drafted by the American Law Institute and the National Conference of
Commissioners on Uniform State Laws. This model act contains uniform rules that govern
commercial transactions.
Article 2 (Sales)
All states except Louisiana have adopted some version of Article 2.
What Is a Sale?
A sale is when title to goods passes from a seller to a buyer for a price.
What Are Goods?
Goods are tangible moveable items. Article 2 establishes that money, stocks, bonds, patents,
and real estate are not tangible goods.
Goods versus Services
Services are not covered by Article 2, unless it is a mixed sale and the goods make up a
predominate part of the sale.
Example: A client walks into Gilmore’s office asking that he prepare the client’s will. This is a
transaction for professional services and not a contract for the sale of goods.
Formation of Sales Contracts
A sales and lease contract requires an offer and acceptance, the same as any other contract.
Contemporary Environment: UCC Firm Offer Rule
The UCC states that a merchant that offers to sell, lease, or buy goods and gives a separate
assurance that the offer will be held open for a stated time period or for a reasonable time,
cannot revoke the offer. A merchant is also prevented from revoking an options contract. All
other offers may be revoked at any time prior to its acceptance.
UCC Statute of Frauds
All contracts for the sale of goods costing $500 or more and lease contracts of $1000 or more
must be in writing.
Passage of Title
Title is by definition legal ownership of goods and real property.
The title to goods passes in any method agreed to by the parties. Absent an agreement, title
passes when delivery is completed. In a shipment contract that requires the seller to ship the
goods to the buyer via a common carrier and the seller is required to make proper shipping
arrangements and deliver the goods into the carrier’s hands, title passes to the buyer at the time
and place of shipment. In a destination contract that requires the seller to deliver the goods
either to the buyer’s place of business or to another destination specified in the sales contract,
title passes to the buyer when the seller tenders delivery of the goods at the specified
destination.
Risk of Loss
Although common law places the risk of loss on the party who had title, the UCC allows the
parties to agree who will bear the risk. In a shipment contract the risk of loss passes to the
buyer when the seller delivers the conforming goods to the carrier; the buyer bears the risk of
loss of the goods during transportation. In a destination contract the seller bears the risk of loss
of the goods during their transportation; the risk of loss does not pass until the goods are
tendered to the buyer at the specified destination.
Contemporary Environment: Commonly Used Shipping Terms
This section covers FOB, FOB place of destination, FAS, FAS port of shipment, CIF, C&F, Exship, and no-arrival no-sale contracts.
FOB point of shipment requires that the seller arrange for the shipment of goods and be
responsible for them until they are received at the common carrier. FAS requires that the seller
bear the responsibility for the goods until they are delivered alongside a vessel or at a dock. CIF
is cost, insurance, and freight, while C & F is cost and freight. Ex-ship requires the seller to bear
the expense and risk until the goods are unloaded. A no-arrival, no-sale contract requires the
seller to bear the expense and risk of loss during transportation. If the goods do not reach the
buyer, the seller is under no obligation to replace the shipment.
Sales of Goods by Nonowners
Stolen Goods
If a buyer has purchased goods from a thief, the real owner can reclaim the goods from the
purchaser or lessee. This is a void title.
Fraudulently Obtained Goods
The seller has a voidable title if the goods are obtained by fraud. However, the buyer can
transfer good title to a good faith purchaser for value.
Entrustment Rule
If an owner entrusts possession of goods to a merchant, they can transfer the goods to a buyer
in the ordinary course of business.
Example: I take my watch to a jeweler for repairs but a store employee unwittingly sells my
watch to an innocent purchaser. The purchaser now has legal title to what was my watch. My
only recourse is to sue the jeweler for money damages.
Warranties
Warranties are the buyer’s or lessee’s assurance that the goods meet certain standards. Article
2 of the UCC establishes certain warranties that apply to the sale of goods.
Express Warranties
Express warranties are created when a seller or lessor states orally, in writing, or through
inferences that the goods meet a certain standard of quality, performance, or condition. No
formal words are necessary to create an express warranty. Puffing and commendation of goods
do not create an express warranty, nor does as affirmation of the value of the goods.
Implied Warranty of Merchantability
If the seller is a merchant normally dealing in the goods sold, there is an implied warranty of
merchantability that the goods are fit for the purpose sold, that they are adequately contained,
packaged, and labeled, and that they are of an even kind and quality. This warranty also means
that the goods conform to all promises on their container, that their quality would pass without
objection in the trade, and if they are fungible goods, that they are of at least average quality for
the type of goods that they are.
Implied Warranty of Fitness for a Particular Purpose
The UCC contains an implied warranty of fitness at the time of contracting if the seller knows the
particular purpose that the buyer will be using the goods for, the seller makes a statement that
the goods will serve that purpose, and the buyer relies on the statement.
Warranty Disclaimers
Express warranties can be limited by disclaimers, if the warranty and disclaimer can be
construed together. Implied warranties of quality can be disclaimed by use of “as is,” “with all
faults,” etc. Implied warranties of merchantability must be specifically disclaimed, while implied
warranties of fitness can be generally disclaimed.
Conspicuous Disclaimer
Written disclaimers must be clearly noticeable by a reasonable person.
MONROE COLLEGE
TEST #3
_____________________________________________________________________
Name
BL 301
Business Law II
Prof. H. Gilmore – Spring 2016
INSTRUCTIONS:
1) This exam consists of:
a: 10 True/False Questions (20 points)
b: 20 Multiple Choice Questions (60 points)
c: 2 Essays (20 points)
2) Don’t read any additional facts into the questions!!!
3) Do the parts in any order you see fit
4) For the true/false questions, write TRUE or FALSE, not just the letters T or F. If you do, any
ambiguity will be resolved AGAINST YOU, AT MY SOLE DISCRETION!!!
5) This is a TAKE HOME EXAM, due by 6:30pm on MONDAY, AUGUST 1
6) Good Luck.
1
MULTIPLE CHOICE (60 points)
Place your answer in the space provided.
1) Barney Rubble buys a used paint sprayer from the local paint store. The sprayer had
a large sign on it that read: “AS IS.” The dealer made no representations regarding
how the paint sprayer would perform. When Barney attempts to spray paint his
house, the trigger on the sprayer gets stuck in the “on” position and before Barney
can pull out the electrical cord to cut the power, paint gets sprayed all over the
house of Barney’s neighbor, Fred Flintstone, and also all over the Flintstones’ prize
dog, Dino, who was to compete in the Westminster Dog Show tomorrow. Barney
sues the paint store. Who wins?
a: The paint store wins; there were no express warranties and all implied warranties
were properly disclaimed.
b: Barney wins; the paint store made an express warranty although it never said so
orally.
c: Barney wins because the paint store is subject to strict liability.
d: None of the above.
2) Sammy owns and operates a jewelry store. Joey works for Sammy as a salesman.
Joey was showing a potential customer, Angie, an emerald necklace and he was
bragging about how “Sam & I always make the business decisions together.” While
Joey was self-aggrandizing about his business relationship with Sammy, he slipped
while helping Angie try on the necklace. When he slipped, he inadvertently pushed
Angie face first through a glass display, horribly & permanently disfiguring her.
When Angie sues (and we know she will), who will be liable?
a: Sammy & Joey are jointly & severally liable.
b: Only Sammy is liable.
c: Joey is personally liable, but could recover against Sammy under his right of
contribution.
d: None of the above.
3) Aloysius drives a delivery truck for Acme, Inc. He owns the truck and makes
deliveries to local merchants who are Acme clients. Aloysius has sole discretion as
to how to perform his duties, as long as they are done in a timely and competent
fashion. One day, while making a delivery for Acme, Inc., and running late, Aloysius
plows into a car in front of him that had the audacity to actually slow down for a
yellow light. Unfortunately, Violet, an elderly passenger in the other car, was killed
instantly. Violet’s family sues both Aloysius and Acme for wrongful death and
$75,000,000 in damages. Who is liable?
a: Acme is solely liable.
b: Aloysius is solely liable.
c: Aloysius & Acme are jointly and severally liable.
d: None of the above.
2
4) Assume the same facts as the prior question. Aloysius is required to work for Acme
between the hours of 8:00am and 4:30pm, take one hour for lunch and wear a
standard issue teal colored uniform (as to distinguish him from a UPS driver). Acme
pays Aloysius every two weeks, net of withholdings. When Violet’s family sues
Acme, Inc. for wrongful death, what result?
a: Aloysius is solely liable.
b: Acme is solely liable.
c: Since Aloysius & Acme are partners, they are jointly & severally liable.
d: None of the above.
5) Judy reasonably believed that Bob and Ray were partners in an automobile repair
business. Bob and Ray were not partners; Ray owned the business as a sole
proprietor. Ray, however, allowed Bob, his perpetually unemployed brother to hang
around the business. One day, while Judy was getting her car fixed, Ray told her
that “my associate here, Bob, will give you a ride to work while I’m fixing your car.”
While riding with Bob, Judy was injured when Bob inadvertently ran a stop sign and
caused an accident. Judy claims that Ray is liable for her injuries. Is Judy right?
a: Yes, Ray is liable due to Bob’s apparent authority.
b: No, Bob was never an employee of the business.
c: No, Bob and Ray were never partners.
d: Yes, Bob is liable because he caused Judy’s injury.
6) In which of the following situations is the seller a merchant?
a: Elizabeth, a CPA who prepares tax returns for her fiancé, Mickey.
b: Gill, an attorney who teaches a course in Wills and Trusts.
c: We-Hack-Em, a medical supply company that sells surgical equipment to local
hospitals.
d: An employee who works in the mailroom of XYZ Corporation.
7) A contract that requires the seller to deliver the goods to a specific location is a:
a: Destination Contract
b: Shipment Contract
c: C.I.F. Contract
d: C.O.D, Contract
8) Thaddeus is a salesman for Conway’s Home Supply. He advises a customer that
certain expensive lumber would last for 20 years without needing treatment to
prevent water damage. In reliance on this advice, the customer purchases the
wood. Thaddeus’ statement turns out to be intentionally fraudulent, and the lumber
deteriorated after ninety days. Conway’s Home Supply is:
a: Not liable; only Thaddeus is on the hook.
b: Neither Thaddeus nor Conway’s Home Supply is liable, the customer
should have known that the lumber could not last for 20 years.
c: Liable, because Thaddeus’ misrepresentation took place within the
scope of employment.
d: Not liable because Thaddeus’ statement constituted good
salesmanship, not fraud.
3
.
9) Which of the following situations would breach the implied warranty of
merchantability?
a: An automobile is suitable for its regular use.
b: A bag of potato chips conforms to reasonable expectations.
c: A large screen plasma TV meets industry standards.
d: An air conditioner only blows out hot air like an electric heater.
10) Smith & Johnson are plumbing contractors who run their business as a partnership.
Green, also a plumber, works for Smith & Johnson as an employee. One day, while
Green is on a job, he gets into a fight with Woody, a homeowner whose plumbing
Green is repairing. When Woody suggested that Green was doing a less than
competent job, Green retaliated by smacking him in the head with a two by four.
Woody suffered severe head trauma and is now suing the partnership (civilly) for
$10 million in damages. Who’s liable for Woody’s injuries?
a: Only Green is liable, since the incident is his fault.
b: Smith & Johnson are liable.
c: Green is liable only up to his investment in the business.
d: B and C.
11) Ann, the owner of Ann’s Bike Dealership, sells a pre-owned motorcycle to Karl. Ann
is a merchant under the Sales Article of the Uniform Commercial Code if she:
a: has previously ridden a motorcycle.
b: holds herself out by occupation as having knowledge and skill particular to
motorcycles.
c: knows anything about motorcycles.
d: has a lifetime subscription to Motorcycle Monthly magazine.
12) Which of the following is an accurate statement regarding the risk of loss in a
destination contract after the seller delivers conforming goods to the carrier?
a: The seller bears the risk of loss during transportation.
b: The buyer bears the risk of loss during transportation.
c: The seller and the buyer equally bear the risk of loss during transportation.
d: The seller bears one-third of the risk of loss and the buyer bears two-thirds of
the risk of loss during transportation.
13) Thieving Weasel Gilmore works as a certified public accountant for “Stupendous
Bean Counters, Inc.”. During an otherwise routine work day, and unknown to the
owners of Excellent Bean Counters, Gilmore helps his friend, Cheap Charlie, cheat
on his tax return by deducting nonexistent expenses and claiming his two goldfish,
Martin & Lewis, as his dependents. Income tax fraud is a felony. Who could
possibly go to jail if convicted?
a: Gilmore & Charlie only.
b: Gilmore, Charlie, and the owners of Excellent Bean Counters.
c: The owners of Excellent Bean Counters only.
d: None of the above.
4
14) Roy, a salesman for Acme Carpets, tells a customer, “Buy your carpet here & I’ll
install it myself for a mere fraction of what Acme would have charged you.” The
customer makes the purchase based on Roy’s statement. Roy installs the carpet,
charges the customer $800 (whereas Acme would have charged $650), and keeps
the money. Roy has breached his duty of:
a: Loyalty
b: Cooperation
c: Accounting
d: A and C only
15) Sal stole Angela’s laptop computer and sold it to his friend Tommy. Angela can
recover the laptop from Tommy:
a: Under any circumstances.
b: Only if Tommy knew the laptop was stolen from Angela.
c: Only if Tommy did not know the laptop was stolen from Angela.
d: Only if Tommy purchased the laptop for less than its fair market value.
16) Mick is the agent for Maria, an opera singer. Mick negotiates a deal for Maria to sing
exclusively at the Metropolitan Opera. On whom is the contract binding?
a: Mick only.
b: Maria only.
c: Either Mick or Maria.
d: None of the above.
17) A retailer of baseball bats, located in Louisville, KY, contracts to sell 1000 bats to a
Little League organization located in Tacoma, WA. The terms of the contract
specified that the bats are to be shipped “FOB Tacoma.” When does the buyer
assume the risk of loss?
a: When the goods reach Tacoma.
b: When the goods are delivered to a carrier in Louisville.
c: When the goods reach a transfer point in Denver.
d: None of the above.
18) Under which of the following transactions does title to goods pass from the seller to
the buyer?
a: an option contract
b: a rental agreement
c: a lease agreement
d: a contract for the sale of goods
19) The provision of the Uniform Commercial Code that says that a merchant who
offers to buy, sell, or lease goods and gives a written and signed assurance on a
separate form that the offer will be held open cannot revoke the offer for the time
stated or, if no time is stated, for a reasonable time is referred to as:
a: gap-filling
b: a firm offer
c: the mirror-image rule
d: the open term rule
5
20) Larry, a real estate broker, sold Juan’s primary residence, worth $10,000,000,
pursuant to a one time agency agreement in which Larry received $600,000, his 6%
commission on the sale. Six months later, Juan sold his vacation home for
$8,500,000. Juan negotiated the transaction himself. When Larry heard about this
second sale, he sued Juan for $510,000, his 6% commission. Will Larry prevail?
a: No, the agency ended when Larry sold Juan’s primary residence.
b: Yes, Juan did not need to sell the vacation home himself when he
already had Larry as his agent.
c: Yes, but only if the vacation home was in the same geographic area as
the primary residence.
d: None of the above.
TRUE/FALSE (20 points)
Place your answer in the space provided.
1) Shyster Stan sells his motor home to his friend, Innocent Ira. Stan fails to tell Ira that
he defaulted on his loan and the bank had completed repossession proceedings
last week. Stan has breached the warranty of title.
2) Felonious Phil, a power tool salesman, promises Jill, a purchaser, that the Turbo
Power Hedge Trimmer will easily cut through bamboo up to three inches thick. Phil’s
statement is an express warranty once Jill purchases the hedge trimmer.
3) Myron is a teller at Chase Bank. On his way to work, he is stopped at the door by
his evil boss, Skinflint, the bank president, who refuses to let Myron in the building.
Skinflint has violated his duty of cooperation.
4) In a destination contract, the seller is required to replace any goods lost in transit.
5) Gill, a college professor, is dying to teach Federal Income Tax & Business Law.
Instead, his college schedules him to teach four sections of Accounting 1, a course
he hates teaching. In response, Gill resigns. Thus, Gill is no longer an agent of the
college.
6
6) Mickey, another college professor at the same institution as Gill, hates teaching
philosophy and wants desperately to teach accounting (although he has no
practical accounting background and his Ph.D. & Master’s degrees are in history &
philosophy, respectively). When he hears that Gill has resigned, he starts teaching
all of Gill’s accounting courses and leaving the philosophy courses unaccounted for
(pardon the pun). Mickey did this without notifying either the department chairman
or the academic dean. Mickey has breached the duty of obedience.
7) Assume now that Gill lands a job at another college, which schedules him to teach
Partnership Tax, Individual Income Tax, and Wills & Trusts. Gill is now ecstatic
because he can finally teach law. Two weeks into his first semester, he asks when
payday is. The president of the college notifies him that since this college is a
nonprofit institution, NOBODY gets paid. The college has violated its duty of
compensation.
8) The firm offer rule allows the offeror to revoke an offer at any point of time prior to
the acceptance.
9) Gilmore, a former accountant and now superstar exotic dancer (stage name
“Bubbilicious”), contracts with the Barclay’s Center to give a series of
performances beginning on May 1, 2016. Unfortunately, prior to performing his
obligation, Gilmore fell down an open manhole while jogging. Luckily, he survived
the accident but his right Achilles tendon was partially severed and, after four
reconstructive surgeries, can no longer dance. The agency between Gilmore &
Barclay’s Center is terminated by impossibility.
10) In a case in which a buyer purchases goods from a thief who has stolen them, the
purchaser acquires voidable title to the goods.
7
ESSAYS (20 POINTS)
PLEASE
WRITE LEGIBLY!!!!!!!!!!!!!!!!!!!!
Keep it simple. Write no more than two paragraphs, and
A YES or NO only answer is WHOLLY unacceptable. Be sure to explain WHY you are
taking your position.
1) Herbie Bittman, age 17, visits a local dealership. He just received his driver’s license
and is looking for a good used car. He picks out a car that he likes, and he wants some time to
save the money he needs to buy the car. The sales manager, Sam Dichter, assures Herbie that
he has thirty days guaranteed to make up his mind about the car, and Dichter confirms this in
writing. Two weeks later, Dichter sells the car to another buyer willing to pay a higher price.
When Herbie returns the next day to buy the car, Dichter tells him that the car is no longer
available, and that Herbie had no right to the car anyway because he is a minor. Herbie sues
Dichter and the dealership for breach of contract. Who prevails? Be sure to explain the
reasons for your answer.
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2) Rhonda is an advertising vice president for Creepy Employer, Inc. Rhonda has
recently received a promotion to her management position at a salary of $446,054 per year. In
her new position, Rhonda is expected to bring in new clients and generate substantial revenues.
After eighteen months, Rhonda is wrongfully fired and quickly takes another job with another
advertising agency shortly thereafter. Rhonda’s new job pays Rhonda an annual salary of
$544,600. When she leaves, several of Creepy’s key clients voluntarily transfer their accounts to
Rhonda’s new employer. When Creepy sues Rhonda, alleging confidentiality violations, she
claims as her defense that she has not violated any of her duties to Creepy, before or after her
termination. Is Rhonda correct? Be sure to explain the reasons for your answer.
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