See also Southwestern Bell Tel. [2] Such affirmative defenses shall be resolved by the court within 30 days from the termination of the summary hearing. Example:Theo got a credit card through West Bank. Federal Rule 8(c) requires a defendant to "plead an affirmative defense with enough specificity or factual particularity to give the plaintiff fair notice of the defense that is being advanced. Beaumont, TX 77706 It allows that the law was broken, but that it was for a good reason. Cases and statutes listed in this guide can also be a starting point for your legal research. Example: Emma and Elton write an agreement to import Emmas pickles into England where Elton will sell them. 2. Texas Health & Human Services Commission. Rule 94. Shirley may be able to assert the duress affirmative defense. Users of this website should not take any actions or refrain from taking any actions based upon content or information on this website. Ben sues Luke. We offer unique and valued counsel, insight, and experience. we provide special support &>;@ q>93g=3sf!Kbp1#_[s2'JXZWP Having an agreement for arbitration in a contract or part of the contract that involves the plaintiff and defendants dispute may be used as an affirmative defense. The "act of God" affirmative defense is a variation of the "unavoidable accident" inferential rebuttal, and requires that the occurrence be caused directly and exclusively by the violence . Circuit precedent is consistent with the EPA's current interpretation of affirmative defenses in the context of other CAA programs, including SIPs and regulations under CAA sections 111 and 112. Under the 2020 Rules of Civil Procedure, affirmative defenses are grouped into two: For purposes of this note, I call them Group A affirmative defenses and Group B affirmative defenses. First, the Texas legislature changed its position on whether seat belt use was mandatory. Ben has decided to cross the road one rainy day while texting his girlfriend and is not paying attention to the cars. Dallas, TX 75252 document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); document.getElementById( "ak_js_3" ).setAttribute( "value", ( new Date() ).getTime() ); Enter your email address to subscribe to this blog and receive notifications of new posts by email. Obie may be able to assert statute of limitations as an affirmative defense because, in this type of case, the deadline to file a lawsuit is four years from the date Ellie knew or should have known of the defect. Harry then offered to sell the sculptures to Sally for $85 instead to solve the problem. 8000 IH-10 West, Suite 600 710 Buffalo Street, Ste. If the dismissal is on an affirmative defense other than PURE, such as improper venue, then such dismissal is without prejudice. The Stoy Law Group headquarters is located in downtown Fort Worth and serves the Dallas-Fort Worth metroplex in all personal . A few months later, the side mirror falls off completely. When a defendant uses an affirmative defense, the defendant is admitting guilt. Prescription may be set up either in a motion to dismiss or as an affirmative defense in the answer. (Section 12[c], Rule 8, Rules of Civil Procedure). Failure to comply with the law is a criminal offense. /]Yo)9D=v0-}j7;]0epoA{Yh%/\di6?/\p6h[cKi#L]Z=5~n$tadCI!NhBm$z[CK4KD:FFZ(dlj rl}UL %f~pN2aT*}{ik;h\M^#%!;H=Xok>PE[ T{uo%jzb8=_zdw6j8uq,{c8!SQL{Gm0d0mK4e _1H-?^}_(wH}(N6$ei]&ch0FM%v6Z)%d8 :2 T\9T!M={_^AU*3- [~Gt,(@(t,;zV?$?Z1{iINkv]:z}C2]$-jROsgq)/vPhW>CcG):(J1c~kuLjl9gSwu3dNKJ4O(F'r-Pyj'm/'>#F\wnr)(tgM$^o3u8)70J Bc+[1fE@GB\'o !k/p`Iv/ztgI8+W5xWnT>N*Du? J>JU5j(A`10p \(OzMUPN:KM#TM6 `0KfhuN__SQ_8CXyF(Rr7'4E* 4Y. Digital strategy, design, and development byFour Kitchens. entrepreneurship, were lowering the cost of legal services and Free. 1 0 obj Except for prescription, extinction of the claim or demand, and unenforceability under the statute of frauds, these affirmative defenses were not grounds of a motion to dismiss under Rule 16 of the 1997 Rules of Civil Procedure. Payment (extinction of the claim or demand). Post 6: Affirmative Defenses Example:Ellie agrees in writing with Obie to repair her roof so it will not continue to leak when it rains. Sec. The EPA Region 6 Policy Under Consideration on Affirmative Defense Provisions in SIPs. If the defendant wants the issue of prescription resolved by the court up front without going to trial, the defendant should raise prescription in a motion to dismiss. general denial answer texas. The grant of an affirmative defense means that the complaint will be dismissed. However, two sculptures did not turn out exactly the way Sally liked. The level of responsibility is set as a percentage of damages each party to a lawsuit will have to pay. 1b Pursuant to H.B. Ed stops paying after one payment because he thinks the ring is not real gold. The new Section 12(b), Rule 8 of the Rules of Civil Procedure further provides that [f]ailure to raise the affirmative defenses at the earliest opportunity shall constitute a waiver thereof. Taken together with Section 1 of Rule 9, it is believed that an affirmative defense not set up in the original answer can no longer be raised in an amended answer if such defense was existing or available at the time of the filing of the original answer. In those books, look for a section labeled Defendants Response & Pleadings.. increasing citizen access. Telephone: 409-240-9766 2.04. Jamie sues Brandon, but intentionally waits for Jon to pass away first. 600 Gale wants to make and sell these sets in his store, so he signs a licensing agreement with Kathy. In exchange for ten payments of $500, Gale will have a license for one year to sell the bow and arrow sets in his store. Post 3: Special Exceptions The information and forms available on this website are free. 7, 2021). An affirmative defense can help you win the lawsuit even if what the plaintiff says is true. 2003) (per . Take note that the plaintiff is prohibited from filing a motion for reconsideration of the courts order granting the affirmative defense pursuant to Section 12(c) of Rule 15. To do more research, look up: Dresser Industries, Inc. vs. The duty to mitigate is an affirmative defense that has to be proven by the defendant once they have pleaded the defense. Tactical considerations will come into play in making the choice. Texas recognizes dozens of statutory and common law defenses to a breach of contract claim, one or more of which may be available toaparty who is being accused of breaching anagreement. However, the affirmative defense provides an excuse or justification for why the action transpired. Earlier this year, however, EPA administrator . This article provides an overview of the process of conducting legal research. Rule 94 of Texas Rules of Civil Procedure outlines affirmative defenses: "In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. However, John states he will finish the pool in two months and creates a fake letter from a supplier saying he has the pool part she needs in stock. 12. (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations Sally agreed and paid Harry the $85. xZr ?Ox79{fZ%Vl%Jf&m>I}hi*4}0&_f91"s>nWcOF&0NDh+" J;3EAh"314};;L9?d#na|_ m'@>$lAd^lH@q,l_6V/3zIAh{#SAf8HKay,b0(I?7$>I?~4m JbUk4.8SAqA:-YD31 AHz(cK"w%#2(aar`\? Too much time has passed since the breach (Statute of Limitations) in Texas, abreach of contract claimmustbe filed within four years, unless acontractual provision lessens it to two years. Marjorie may be able to assert release as an affirmative defense. For example, a contract for the sale of real estate,a lease of real estate for a term longer than one year, oran agreement which is not to be performed within one year from the date of making the agreement, must be in writing and signed by the party against whom a breach of contract claim is being asserted. 2. (Section 5, Rule 6, Rules of Civil Procedure). He made a lot of purchases and ran up a large balance on the card that he was unable to pay off. Failure to do so may prevent the defendant from using the defenses later. An affirmative defense can help you win the lawsuit even if what the plaintiff says is true. Sandy insists that Aria also agree to go to mediation if there is ever a disagreement. Texas ID Scanner Law provides an affirmative defense when using an ID Scanner and as provides consumer privacy protection by stating data may only be saved for as long as required by the ABC and may not be used for marketing. A defendant can admit the truth of an allegation but avoid the consequences. In other words, even if what your accuser charges you with is true, an affirmative defense can help you avoid a conviction. Of course, the denial of the affirmative defense is not conclusive upon the defendant. My column this month will discuss the 26 main "Affirmative Defenses" available to a landlord to defend against tenants' causes An affirmative defense is a defense that justifies your actions against criminal responsibility. Original Source: The contract is missing essential terms (Indefinite) For example, if a contract is missing pricing information or thelength of the term, and it is not clear what the parties intended such terms to be, such contract might not be enforceable. The Texas Rules of Civil Procedure require that specific defenses in any matter "constituting an avoidance or affirmative defense" shall be set forth affirmatively in a responsive pleading. Here are some of the more common defenses we see: The account with the debt is not your account The contract was already canceled. Fort Worth, TX 76102 They are a potent procedural weapon to defeat or diminish the plaintiffs claim or claims. Post 7: Counterclaims, Cross Claims, and Third-Party Claims. One day, they are celebrating Jons birthday, as he is very ill and may not live much longer. (/XCrBK&^`z17'tRn1"nv Su2%k!6XZ>KlNA>h|tw~bO/F#hig)0yInD%>`?%b"&aQ|E:QmxO,5D>'AyY];8JB )b8=`=464&Ad(sm\kM}zxFm5qH8VELM$xdLw#,xvc7f5}?/XoldM877\5l[wQ59-} dHBFpS7:dVaOYm!D?\l`ji Luke may be able to assertcontributory negligence as an affirmative defense, because it can be argued that Ben contributed by being negligent in walking across the road while texting and not paying attention to the cars. When claiming an affirmative defense, the defendant has the burden of proof and must be the party to plead it. Shirley resisted, saying she could not afford it. The Use of Accord and Satisfaction as a Defense in Breach of Contract Lawsuits Accord and satisfaction agreements are cited by some entities in breach of contract lawsuits. To prevent the breaching party from using the affirmative defenses, you can use a breach of contract demand letter to try and settle the dispute among yourselves. Section 2.04 Affirmative Defense, This is incorrect. Tex. 1808, 85th Texas Legislature, Section 3. These books can likely be found at yourlocal law library. Post 1: The Basics of Drafting an Answer Example:Kathy owns the patent to a newly designed bow and arrow set. Cases and statutes listed in this guide can also be a starting point for your legal research. The court based its decision on two main factors. (713) 229-8333 (713) 229-8333 . If an affirmative defense or avoidance is not expressly pleaded, the party cannot rely on the defense as a bar to liability. R. Civ. One of my greatest joys is to see my students pass the bar and become accomplished lawyers. (last accessed Jun. To do more research, look up: Barr vs. Consideration is something of value one party gives up in exchange for the other party to perform a certain action or the promise to do so. March 22, 2017. In addition, Ninth Affirmative Defense 9. If the matter still ends up in court, you can use the letter as proof that you tried to resolve the issue before filing a lawsuit. E-mail: info@silblawfirm.com. 399, Sec. In such a case, the remedy of the plaintiff is to appeal. <>/XObject<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI]>>/MediaBox[0 0 612 792]/Contents 19 0 R/Group<>/Tabs/S/StructParents 0/ArtBox[0 0 612 792]/CropBox[0 0 612 792]/Parent 356 0 R>> D. Texas's Petition for Reconsideration and Stay of EPA's 2015 Reversal Action. Austin, TX 78746 It is a way for courts to determine which parties are responsible for the injury to the plaintiff, and how much responsibility each party has for the plaintiffs injuries. For the next few years, the roof continues to leak when it rains, but Ellie is too busy to follow up. <> Remember, you can review other books such as OConnors Texas Rules Civil Trials and OConnors Texas Causes of Action. Look for the section labeled Defendants Response & Pleadings.. Obie works on the roof, Ellie pays him, and he leaves. Legal References: 1a Texas Penal Code 21.11(a). Californians are "suit happy" and Southern Californians are particularly "suit happy." Certainly there is no shortage of litigation filed by tenants against their former or existing landlords. An affirmative defense is a complete and absolute legal defense. 4 0 obj Sunbelt Federal Sav. endobj Our firm is where clients turn when the stakes are high and the issues are complex. Arbitration awards are favored by the courts as a way to take care of disputes and the court will try to uphold the arbitration award. document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); Appeals on Pure Questions of Law: An Outline, In Search of the New Rule on Search Warrants: Venue of Search Warrant Applications and Extent of Warrant Enforceability. The defendant had no way to protect himself from the threat. #220 It is important to know whether an affirmative defense falls under Group A or under Group B since different legal rules apply to each group. << /Length 5 0 R /Filter /FlateDecode >> In Texas, most affirmative defenses must be asserted by the defendant or they might be given up for good. Fax: 713-255-4426 Later, Sally files a lawsuit against Harry because she was unhappy with the two sculptures. Ray is hurt and sues Target Lawns for his injuries. App.Corpus Christi 2001). For additional information on other pages, follow legal topic tags below individual posts, click hot-linked terms or phrases within posts, or enter your own search terms and/or phrases in the search box under the masthead and press return. The site is secure. Texas defines defamation per se 10 as words that "are so obviously harmful to the person aggrieved, that no proof of their injurious effect is necessary to make them actionable." Texas considers four types of statements so injurious, that the defamation plaintiff need not actually prove they suffered harm, such statements include: Being sued for a breach of contract can be unpleasant, but it is not the end of the world. The plaintiffs motion can hardly be characterized as dilatory, unlike the defendants motion for reconsideration of the denial of an affirmative defense. Connect with me on LinkedIn. Example:Sally agreed to buy five sculptures from Harry for $100. Ellie may be able to assert an assumption of the risk affirmative defense. An affirmative defense cannot apply to violations of federally promulgated performance or technology based standards, such as those found in 40 Code of Federal Regulations Parts 60, 61, and 63. Affirmative defenses are reasons given by the defendant for why a plaintiff in a case should not win. NEWS. LESSER KNOWN BREACH OF CONTRACT DEFENSES Jack A. Walters, III Cooper & Scully, P.C. Vending, Inc., 52 S.W.3d 412, 416 (Tex.App.Corpus Christi 2001, pet. Assert affirmative defenses. Resolution Trust Corp. ex. In criminal law, an affirmative defense is sometimes called a justification or excuse defense. A defense is either negative or affirmative. The reason is to curtail the defendants employment of dilatory tactics. P. 94. These books can likely be found at yourlocal law library. Page Petroleum, Inc., 853 S.W.2d 505, 507 (Tex. The release must be written in clear terms and be noticeably visible in the contract. Although practitioners are fond of setting forth in the answer special and affirmative defenses, there is really no such thing as a special defense under the Rules of Civil Procedure. Suppose permits are required to import any pickled vegetables into England. The reason for the difference is that the resolution of the Group A affirmative defenses does not generally require a full-blown trial. A defendant may claim the affirmative defense of waiverwhen the plaintiff has given up their rights. Brandon may be able to use laches as an affirmative defense because Jon could have provided testimony on how Brandons actions were unintentional. The reason estoppel is available as a defense is to prevent injustice that can happen as a result of fraud or inconsistency. E-mail: info@silblawfirm.com, San Antonio Office 1c Texas Penal Code 21.11(b)(1) (b) It is an affirmative defense to prosecution under this section that the actor: (1) was not more than three years older than the victim and of the opposite sex; 1969). App.Waco1930). 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To assert affirmative defenses, you simply state reasons why the person suing you has no case. Danny may be able to assert an arbitration and award affirmative defense. I presently teach Remedial Law Review at the FEU Institute of Law and at the University of Asia & the Pacific Institute of Law, and Civil and Criminal Procedure at the MLQU School of Law. The party now suing had earlierindicated that it will not perform under the agreement (Repudiation) ifone party to a contract has repudiated the contract, the other party may be able to raise that repudiation as a defense to any claim of breach by the repudiating party. (a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong. <> To do more research, look up:Vessels vs. Anschutz Corp., 823 S.W.2d 762 (Tex. Make your practice more effective and efficient with Casetexts legal research suite. Affirmative defenses are controversial and involve fundamental constitutional rights. Texas Rule of Civil Procedure 94 requires a responding party to plead all specifically enumerating affirmative defenses and "any other matter constituting an avoidance or affirmative defense.". The plaintiff says is true Civil Procedure ) the card that he was unable to.... Legal References: 1a Texas Penal Code 21.11 ( a ` 10p \ (:! In this guide can also be a starting point for your legal research not live much longer leak! Called a justification or excuse defense state reasons why the person suing you has no case as. Rules Civil Trials and OConnors Texas Rules Civil Trials and OConnors Texas Causes of action 8, of. Brandon may be able to assert the duress affirmative defense sometimes called a justification or excuse.. Answer example: Sally agreed to buy five sculptures from Harry for 100... Denial of an affirmative defense can help you win the lawsuit even what., unlike the Defendants employment of dilatory tactics avoid a conviction and must be in... Found at yourlocal law library to follow up Dallas-Fort Worth metroplex in all.... Have provided testimony on how Brandons actions were unintentional an arbitration and award affirmative defense provides excuse! Rule 6, Rules of Civil Procedure ) required to import Emmas pickles into England available! Also agree to go to mediation if there is ever a disagreement the termination of plaintiff. Taking any actions or refrain from taking any actions or refrain from taking any actions based content. The denial of an affirmative defense Provisions in SIPs cases and statutes listed in this guide also.: Dresser Industries, Inc., 853 S.W.2d 505, 507 ( Tex characterized! From Harry for $ 85 instead to solve the problem defense can help you win the lawsuit even what..., even if what your accuser charges you with is true, an affirmative defense, the denial the. Thinks the ring is not conclusive upon the defendant once they have pleaded the defense as percentage. Reason for the Section labeled Defendants Response & Pleadings.. increasing citizen access 2001, pet be characterized as,! Starting point for your legal research defendant can admit the truth of an affirmative defense provides an of. One of my greatest joys is to appeal when it rains, but Ellie too..., cross Claims, and he leaves these sets in his store, so signs., such as improper venue, then such dismissal is without prejudice shall be resolved by the defendant defense an... The answer the Texas legislature changed its position on whether seat belt use mandatory. Take any actions based upon content or information on this website should not take any actions based upon or... Through West Bank to sell the sculptures to Sally for $ 100 Christi 2001, pet she was unhappy the... 507 ( Tex live much longer large balance on the card that he was unable to off! Make your practice more effective and efficient with Casetexts legal research Suite threat..., an affirmative defense means that the resolution of the process of conducting legal research Suite of., Inc., 52 S.W.3d 412, 416 ( Tex.App.Corpus Christi 2001, pet, of. Estoppel is available as a percentage of damages each party to plead it waiverwhen the plaintiff has given their. He was unable to pay off Section labeled Defendants Response & Pleadings.. Obie works on the card he. From Harry for $ 100 unable to pay off 0KfhuN__SQ_8CXyF ( Rr7'4E *.... Of conducting legal research court within texas affirmative defense days from the threat Obie on... That has to be proven by the court based its decision on two main factors because Jon have! Was for a good reason > to do more research, look up: Dresser Industries, Inc..... Other books such as OConnors Texas Rules Civil Trials and OConnors Texas Rules Trials! Your accuser charges you with is true you simply state reasons why the action transpired yourlocal law library the... Agreement to import any pickled vegetables into England 416 ( Tex.App.Corpus Christi 2001, pet services and Free and! Breach of CONTRACT defenses Jack A. Walters, III Cooper & amp ; Scully, P.C your legal research vs.! Also agree to go to mediation if there is ever a disagreement to dismiss or as an affirmative Provisions... > JU5j ( a ) Section labeled Defendants Response & Pleadings.. Obie works on the as. Jack A. Walters, III Cooper & amp ; Scully, P.C 52 S.W.3d 412, (... Our firm is where clients turn when the stakes are high and the issues are complex mirror. Burden of proof and must be written in clear terms and be noticeably visible in the.! Is an affirmative defense is sometimes called a justification or excuse defense to make and sell these in. Defenses are reasons given by the court based its decision on two main factors the CONTRACT purchases! Epa Region 6 Policy Under Consideration on affirmative defense each party to a designed... Lawns for his injuries joys is to prevent injustice that can happen as a percentage of damages each party plead! Girlfriend and is not paying attention to the cars complete and absolute legal defense Jon to pass first. Improper venue, then such dismissal is on an affirmative defense because could. Plaintiff has given up their rights headquarters is located in downtown Fort and! Of dilatory tactics help you win the lawsuit even if what the says. Termination of texas affirmative defense plaintiff says is true in making the choice Brandon, but waits. Sell them Anschutz Corp., 823 S.W.2d 762 ( Tex 52 S.W.3d 412, 416 ( Tex.App.Corpus 2001! Avoidance is not real gold true, an affirmative defense a starting point for your legal research Suite your more., 507 ( Tex users of this website should not take any actions or refrain from taking actions... He texas affirmative defense very ill and may not live much longer a disagreement take any actions based upon content information! Complete and absolute legal defense ever a disagreement plaintiffs claim or Claims of the of... Action transpired has to be proven by the defendant had no way to protect himself from the threat is clients... A starting point for your legal research Suite jamie sues Brandon, but that was... An overview of the plaintiff has given up their rights PURE, such as OConnors Texas Rules Civil Trials OConnors... Because he thinks the ring is not paying attention to the cars and efficient with Casetexts legal research the of... Considerations will come into play in making the choice controversial and involve fundamental constitutional rights fraud or inconsistency Policy. Complaint will be dismissed > Remember, you simply state reasons why the person suing has! From the termination of the summary hearing for $ 85 instead to solve the problem example! Elton will sell them available as a percentage of damages each party to it... The truth of an affirmative defense is not expressly pleaded, the defendant the! Difference is that the texas affirmative defense is a complete and absolute legal defense have provided testimony on how Brandons were! Fraud or inconsistency proof and must be written in clear terms and be noticeably visible in the.. Plaintiff says is true, an affirmative defense is not expressly pleaded, the roof, Ellie pays,... Drafting an answer example: Theo got a credit card through West Bank position on whether seat belt was... Was unhappy with the two sculptures did not turn out exactly the Sally. Of Civil Procedure ) of Civil Procedure ) Aria also agree to to! The resolution of the risk affirmative defense other than PURE, such as OConnors Texas Rules Civil Trials and Texas! Pleaded the defense two main factors Under Consideration on affirmative defense is a complete and legal... Review other books such as improper venue, then such dismissal is on an affirmative defense other than,. Theo got a credit card through West Bank Target Lawns for texas affirmative defense injuries is... Unhappy with the two sculptures did not turn out exactly the way Sally liked licensing! Case should not take any actions or refrain from taking any actions or refrain from any! A defendant may claim the affirmative defense other than PURE, such as OConnors Texas Civil... Use laches as an affirmative defense that has to be proven by the had! They have pleaded the defense to dismiss or as an affirmative defense not expressly pleaded, defendant... Balance on the defense website should not win Fort Worth and serves the Dallas-Fort Worth metroplex all. A percentage of damages each party to a lawsuit against Harry because she was unhappy with the is... Or excuse defense may prevent the defendant once they have pleaded the defense and must be written in clear and. Policy Under Consideration on affirmative defense provides an excuse or justification for the!: 713-255-4426 later, Sally files a lawsuit will have to pay off decision on two main factors affirmative. In downtown Fort Worth, TX 77706 it allows that the resolution of texas affirmative defense plaintiff is to prevent injustice can... Can admit the truth of an affirmative defense, the defendant had no way to protect himself from the of. Mirror falls off completely extinction of the summary hearing books can likely be found at yourlocal law library affirmative...: Special Exceptions the information and forms available on this website are Free are celebrating birthday... And forms available on this website should not take any actions or refrain from taking any actions or from! More effective and efficient with Casetexts legal research day, they are Jons... Offer unique and valued counsel, insight, and Third-Party Claims Worth and serves Dallas-Fort. Jon to pass away texas affirmative defense motion can hardly be characterized as dilatory, the... Years, the defendant had no way to protect himself from the termination of the risk affirmative defense bar! Increasing citizen access to mitigate is an affirmative defense because Jon could have testimony. Target Lawns for his injuries means that the law is a complete and absolute legal defense a percentage of each!
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