Islamic Fiqh > Companies and leases > Wakala (agency mandate) > The stipulation of liability against the agent
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
This chapter deals with the hand of the agent (yad al-wakil): the status of a stipulation imposing liability upon him, then the situations of disagreement between the principal and his agent: over transgression or negligence, over loss, over the authorized act and the collection of the price, over restitution, over the very existence of the mandate, over its particulars, over the collection of a debt and over its discharge. For each situation, the views of the four schools are set out with their justifications and classical references.
Al-Mawardi, may Allah have mercy on him, reports that Abu Ali at-Tabari used to say: if the mandate is for a fee, it follows the course of the shared hireling (ajir mushtarak), so the obligatoriness of liability would rest on two opinions; but this is not sound, for if the mandate departs from the rule of hire in its binding force, it also departs from its rule in liability (al-Hawi al-Kabir 6/502, Bada'i' as-Sana'i' 6/34, Tanqih al-Fatawa al-Hamidiyya 4/279, Durrar al-Hukkam 3/582, 584, adh-Dhakhira 8/15, al-Bayan 6/457, ar-Rafi'i, ash-Sharh al-Kabir 5/249, Mughni al-Muhtaj 3/214, Nihayat al-Muhtaj 5/55, Kanz ar-Raghibin 2/866, an-Najm al-Wahaj 5/58, ad-Dibaj 2/320, Kifayat al-Akhyar 325, Asna al-Matalib 2/276, Kashshaf al-Qina' 3/566, Sharh Muntaha al-Iradat 3/535).
The stipulation of liability against the agent: the jurists agree, as has come before, that the agent is a trustworthy custodian, like the depositary of a deposit, so that no liability falls on him if he does not transgress and is not negligent. They also agree that it is not valid to stipulate liability against the trustworthy custodian, for it is a condition that contradicts what the contract requires, and making something whose origin is a trust (amana) guaranteed by way of a stipulation is not valid.
It is said in ad-Durr al-Mukhtar: the stipulation of liability against the trustworthy custodian is void, and the fatwa is given accordingly (ad-Durr al-Mukhtar 5/664, al-Bahr ar-Ra'iq 7/274, al-Mabsut 15/84).
It is said in ash-Sharh al-Kabir: whatever is a trust does not become liable by its stipulation, for what the contract requires is that it be a trust; so if he stipulates his liability, he has committed himself to guarantee something whose cause of liability does not exist, and it does not bind him, as if he stipulated the liability of the deposited property or of property in his hand. What is already liable does not lose its liability by his stipulation, for what the contract requires is liability; so if he stipulates the negation of liability, it is not removed, its cause being present, as if he stipulated the negation of liability for what he transgresses in. According to Ahmad, it was mentioned to him and he said: "The believers are bound by their conditions", which indicates the negation of liability by stipulation; the first is the apparent madhhab, for what we mentioned (ash-Sharh al-Kabir with al-Mughni 5/366, al-Bahr ar-Ra'iq 7/274, Majma' ad-Damanat 163, Majma' al-Anhar 2/338, Ibn Abd al-Barr's al-Kafi 395, al-Qadi Abd al-Wahhab's al-Ishraf 'ala masa'il al-khilaf 2/42, az-Zurqani 6/117, Bidayat al-Mujtahid 2/311, ar-Ramli's gloss on Asna al-Matalib 3/76, al-Mubdi' 5/145, al-Insaf 6/113, al-Ifsah 2/10).
The disagreement between the agent and the principal falls into six situations. The first is disagreement over the agent's transgression or negligence. We have said: the agent is a trustworthy custodian by the agreement of the jurists, and he is liable only if he transgresses or is negligent. But if the principal and the agent differ over the agent's transgression or negligence in safeguarding, or his contravention of his principal's instruction, such as when the principal claims against him: you loaded the beast beyond its capacity, or you loaded on it something for yourself, or you were negligent in safeguarding it, or you wore the garment, or I ordered you to return the money and you did not, and the like, the majority of jurists, the Hanafis, Malikis, Shafi'is and Hanbalis, held that the word is the agent's as well, with his oath; for he is a trustworthy custodian, and it is impossible to establish evidence against him, so he is not charged with it, like the depositary of a deposit; and likewise everyone in whose hand is something of another by way of trust: the father, the executor, the judge's custodian, the depositary of a deposit, the partner, the mudarib, the pledgee and the lessee.
It is so because were people charged with that despite its impossibility for them, people would refrain from entering into trusts though they need them, and harm would befall them. It is also because he denies what is claimed against him, and the word is that of the denier. Whenever destruction is established in his hand without his transgression, whether by accepting his word, the principal's admission, or evidence, there is no liability on him, whether the merchandise he was ordered to sell perished, or he sold it and collected its price and the price perished, and whether he acted for a fee or without a fee; for he is the owner's substitute in custody and disposal, so destruction in his hand is like destruction in the owner's hand, and he follows the course of the depositary of a deposit, the mudarib and their like; if he transgresses or is negligent, he guarantees. The same applies to all custodians (al-Mughni 5/60, Kashshaf al-Qina' 3/566, Sharh Muntaha al-Iradat 3/535, Bada'i' as-Sana'i' 6/34, Tanqih al-Fatawa al-Hamidiyya 4/279, Durrar al-Hukkam 3/582, 584, adh-Dhakhira 8/15, al-Bayan 6/457, al-Hawi al-Kabir 6/502, ar-Rafi'i, ash-Sharh al-Kabir 5/249, Mughni al-Muhtaj 3/214, Nihayat al-Muhtaj 5/55, Kanz ar-Raghibin 2/866, an-Najm al-Wahaj 5/58, ad-Dibaj 2/320, Kifayat al-Akhyar 325, Asna al-Matalib 2/276).
Ibn Rushd, may Allah have mercy on him, said: as for when the agent performs an act that is a transgression and claims that his principal ordered him, the well-known view is that the word is the principal's; it has also been said that the word is the agent's, that he did order him, for he entrusted him with the act (Bidayat al-Mujtahid 2/228).
If the agent and the principal differ over the loss of what is in the agent's hand, the agent says: your property perished in my hand, or the price I collected, the price of your merchandise, perished in my hand, and the principal calls him a liar. The majority of jurists, the Hanafis (al-Mabsut 19/79, Bada'i' as-Sana'i' 6/34, al-Jawhara an-Nayyira 3/515, al-Muhit al-Burhani 3/339, Tabyin al-Haqa'iq 4/282, al-'Inaya 11/119), the Malikis, Shafi'is and Hanbalis, held that the word is the agent's, with his oath. Ibn Qudama, may Allah have mercy on him, said: the word is therefore the agent's, with his oath; for he is a trustworthy custodian, and it is impossible to establish evidence against him, so he is not charged with it, like the depositary of a deposit; and likewise everyone in whose hand is something of another by way of trust: the father, the executor, the judge's custodian, the partner, the mudarib, the pledgee, the lessee and the shared hireling. It is so because were people charged with that despite its impossibility for them, people would refrain from entering into trusts though they need them, and harm would befall them.
Al-Qadi, may Allah have mercy on him, said: unless the loss is claimed for an evident event, such as a fire, plunder and the like; he must then establish evidence of the existence of that event in that place, and then his word stands on its perishing thereby; this is the view of al-Shafi'i; for the existence of an evident event cannot be hidden, and establishing evidence upon it is therefore not impossible (al-Mughni 5/60, ash-Sharh al-Kabir 5/247, al-'Udda, charh al-'Umdda 1/238, al-Mubdi' 4/381, al-Insaf 5/396, Kashshaf al-Qina' 3/566, Sharh Muntaha al-Iradat 3/535).
The Malikis said: the agent is believed concerning the loss, with no difference between claiming the loss of the price, or of the purchased item, or of the sale, whether he advanced the price by which the purchase took place or not. Thus Ibn Yunus reports that Malik said, concerning one who orders a man to buy him pearls in Mecca and to pay for them on his behalf: if he returns and claims that he bought them for him and paid on his behalf, and then the pearls perish, he swears that he bought what he was ordered to buy and paid on his behalf, and the price falls upon the one who gave the order; for he is his trustworthy custodian. If he claims that he brought out the price and it was lost before buying for him, he is liable only with evidence. If the salam item (advance-sale object) is of those whose sale before delivery is permitted, and he was commissioned to sell it, and he says: I sold it and the price was lost, he is believed here with his oath, like the question of the pearls (al-Bahja fi charh at-Tuhfa 1/346, 2/464, al-Mudawwana 4/191, Tahdhib al-Mudawwana 2/53, adh-Dhakhira 4/229, ash-Sharh al-Kabir 5/75, at-Taj wal-Iklil 4/214, Tahrir al-Mukhtasar 4/295, Sharh Mukhtasar Khalil 6/81, Bidayat al-Mujtahid 2/228).
The Shafi'is said: if the agent claims that the item in his hand for his principal perished without negligence on his part, and the principal denies the loss: if he claims that it perished through an evident cause, his word is not accepted until he establishes evidence of the evident cause, for it is possible for him to establish evidence of it. If he establishes evidence of the evident cause, or claims the loss through a hidden cause, his word stands, with his oath that it perished; for it is impossible for him to establish evidence of its perishing, so his word is accepted in that.
If he says: I collected the price, where collecting it is permitted to him, either because he was commissioned for the sale without restriction, or with collection of the price, and it perished in my hand, or I handed it over to you, and the principal denies that the agent collected it: the principal is believed if the disagreement arose before the delivery of the sold item; for the default is the persistence of his right and the absence of collection. If the disagreement arose after the delivery of the sale, the agent is the one believed, with his oath, according to the madhhab; for the principal imputes to him fault and treachery in delivering the sold item before collecting the price, whereas the default is its absence.
Al-Khatib ash-Shirbini, may Allah have mercy on him, said: according to one view, the principal is the one believed; for the default is the persistence of his right. The other way of determining whom to believe in both situations concerns the two cases: the agent's claim of having disposed of the item, and the principal's denial; if he authorized him to deliver before collecting, or to sell on deferred payment, or to collect after the term, it is as before delivery, since there is no treachery in delivering. If we believe the agent and he swears, there are two views on the buyer's discharge; the sounder of the two, as al-Baghawi said, is that he is not discharged; for the default is the absence of collection. We accept the agent's word concerning himself because of the trust placed in him. Ar-Rafi'i confined himself, in ash-Sharh as-Saghir, to the report of this view, and the imam preferred the other view; Ibn ar-Rif'a transmitted it from al-Qadi Husayn, and al-Ghazali declared it sound in al-Basit (Mughni al-Muhtaj 3/222, 223, al-Muhadhdhab 1/358, al-Bayan 6/466, Rawdat at-Talibin 3/535, al-'Ubbab 696, ash-Sharh al-Kabir 5/266, Nihayat al-Muhtaj 5/68, Kanz ar-Raghibin 2/876, an-Najm al-Wahaj 5/68, ad-Dibaj 2/328).
It is said in al-'Ubbab: if the price of what the agent sold with his own hand perished, and the owner did not know of its loss, then demanded it from him, and he delayed although he could have returned it had it remained, he does not guarantee. The same applies if the principal says: give this to Zayd, and he was able to do so but did not until it perished; or if the principal demands that the agent return the merchandise or its price if he sold it, and he says: I shall return it at another time, then claims that it was already perishing and that he was unaware of it, establishing evidence of the prior loss and swearing that he did not know (al-'Ubbab 696).
If the agent and the principal differ over the act and the collection of the price, the agent saying: I sold and collected the price, and it then perished, and the principal saying: you did not sell, you collected nothing, is the word the agent's or the principal's? The Hanafis and the Hanbalis, according to one view, held that the agent's word is accepted, with distinction according to them. The Hanafis said: for the agent in the sale of a thing, when he says: I sold and collected the price and it perished, this involves two cases, according to whether the principal delivered the sold item to the agent or not. If he did not deliver it and the agent says: I sold it to this man and collected the price from him, and the price perished in my hand, or he says: I handed it over to the principal, the principal believes him or calls him a liar; if he believes him in all of that, the price perishes from the principal's property and nothing is due from the agent; for a trust has perished in his hand.
If he calls him a liar in all of that, denying the sale, or believing the sale but denying the collection of the price, the agent is believed in the sale and not in the collection of the price on the principal's account; for the agent's admission concerning himself is valid for him. The buyer, by virtue of his option, pays the price a second time to the principal and takes the sold item, or rescinds the sale; in both cases he has recourse against the agent for what he paid. If the agent admits the sale and claims that the principal collected the price from the buyer, and the principal denies it, the agent is believed in the sale and not in his admission against the principal of the collection, and the buyer has the option as we mentioned, but he has there no recourse against the agent; for no admission of collection came from him. If the principal believes him in the sale and the collection of the price and calls him a liar over the loss or the handing over, the word is the agent's in the claim of the loss or the handing over, with his oath; for he is a trustworthy custodian. The principal is compelled to deliver the sold item to the buyer, for the sale and the collection of the price were established by believing him; and the buyer is not ordered to pay the price a second time to the principal, for the arrival of the price in the agent's hand was established by believing him, and its arrival in his agent's hand is like its arrival in his own hand.
This is when the sold item had not been delivered to the agent. If it had been delivered to him and the agent says: I sold it to this man and collected the price from him, and it perished with me, or he says: I handed it over to the principal, or he says: the principal collected the price from the buyer, the agent is believed in all of that, the sold item is delivered to the buyer, the buyer is discharged of the price, and there is no oath against him. If the principal believes him in all of that, there is no problem; likewise if he calls him a liar over the sale, or believes him in the sale but calls him a liar over the collection of the price; for the agent has admitted the buyer's discharge of the price, so he does not swear, and it is the agent who swears: if he swears upon his claim, he is discharged of the price, and if he declines the oath, he owes the principal the guarantee of the price.
If the sold item is afterwards reclaimed from the buyer's hand, the buyer has recourse for the price against the agent if the latter admitted collecting it from him; and the agent has no recourse against the principal for what he guaranteed to the buyer; for the principal did not believe him concerning the collection of the price: the agent's admission concerning himself is valid, but recourse against the principal on that basis is not. The principal may swear that he knew of the agent's collection: if he declines, what the agent guaranteed falls back upon him.
If the principal admits that the agent collected the price but calls him a liar over the loss or the handing over, the agent has recourse for what was imposed upon him as liability; for his agent's hand is like his own hand. If the agent did not admit collecting the price with his own hand, but admitted that the principal collected it from the buyer, the buyer has no recourse against the agent; for he did not collect it from him; nor against the principal; for their mutual admission against him concerning the collection is not valid. The oath is definitively upon the principal: if he declines, what was guaranteed falls back upon him, and the sold item is his; if he swears, there is no recourse against him with anything, but the sold item is sold at his expense.
If the sold item was not reclaimed but has a defect, the buyer may litigate against the agent: if annulment takes place by judicial decision, he has recourse for the price against the agent if the latter admitted collecting it from him; and the agent may have recourse against the principal for what he guaranteed, if the principal admits that the agent collected the price, the sold item then belonging to the principal. If the principal does not admit the collection, the agent has no recourse against him for his guarantee; he may swear against the principal his knowledge of the collection: if he declines, it falls back upon him, and if he swears, there is no recourse; but he sells the item and recovers from its price what he guaranteed: if the price shows a surplus, he returns it to the principal, and if it shows a shortfall, there is no recourse against anyone for the shortfall.
At-Tahawi mentioned that the agent sells it, according to the view of Abu Yusuf and Muhammad, and does not sell it according to the view of Abu Hanifa, may Allah have mercy on them, and he likened this to the sale of the insolvent debtor's property. But if the agent sells it, the sale is valid; for when it was annulled against him rescissively, the agency returned; so when the sold item is sold, the buyer recovers the price from it, if the agent admitted the principal's collection without admitting his own; if he admitted the collection of the price and gave his guarantee, the buyer takes from the price the measure of what he was defrauded of: if the price shows a surplus, it is returned to the principal, and if it shows a shortfall, there is no recourse against anyone (Bada'i' as-Sana'i' 6/36, al-Mabsut 12/215).
The Malikis said: if the agent says: I disposed as you authorized me, of a sale or otherwise, and the principal says: you did not dispose as I authorized, the agent is believed; for he is a trustworthy custodian, and the ordered act, sale or otherwise, binds the one who gave the order by reason of his admission of the mandate. The same applies if he claims the loss of the capital: he is believed; for the default is the non-attachment of liability to him. Likewise if he claims to have returned the money, for a fee or not.
Likewise his word: I collected the price and it perished: the word is his; for liability must be removed from him if the collection is established by evidence, or if the principal believes him; otherwise the creditor is not discharged of the debt, unless the collector is a fully delegated agent or an executor, discharged by his admission without evidence, unlike the specific agent; and in both cases there is no liability upon the agent ('Uqd al-Jawahir ath-Thamina fi madhhab 'alim al-Madina 2/833, adh-Dhakhira 8/17).
The Shafi'is said: if he was commissioned for a sale, a gift, a settlement, a divorce, a manumission or a release of debt, and he says: I disposed as you authorized me, and the principal says: you did not dispose after review, if this disagreement arises after the agent's separation, his word is not accepted except with evidence; for he then no longer has the right of disposal. An-Nawawi said: if it arises before the separation, is the word the principal's or the agent's? Two views are apparent with the majority: the word is the principal's, and this is his explicit text in several places. It has also been said: what the agent may perform by himself, such as divorce, manumission and release of debt, his word is accepted therein with his oath; what he may not, such as sale, it is not.
If the principal believes the agent in the sale and the like but says: I revoked you before the act, and the agent says: rather after the act, it is as if the husband said: I took you back before the end of the 'idda, and she said: my 'idda ended before the return.
If the principal says: the agent sold, and the agent says: I did not sell, if the buyer believes the principal, the transfer of ownership is ruled in his favor; otherwise the word is the agent's.
If he was commissioned for the sale and he collects the price, or for the sale without restriction, and we permit him the collection of the price, and they agree upon the sale but differ over the collection of the price, the agent saying: I collected it and it perished in my hand, or I handed it over to you, and the principal denying it, there are two ways of determining whom of the two to believe: one, like the previous disagreement over the sale and the like; and the sounder of the two: if they differ before the delivery of the sold item, the word is the principal's; if after its delivery, there are two views: one the principal's word, and the sounder the agent's word, as Ibn al-Haddad said; for the principal imputes to the agent fault and treachery in delivering without collecting, whereas the default is its absence. This distinction applies to authorization for sale without restriction. If the authorization concerned delivery before collecting the price, or sale on deferred payment, or collection after the term, there is no treachery in delivering without collecting, and it is like the disagreement before delivery. If we believe the agent and he swears, there are two views on the buyer's discharge: the sounder of the two with the imam is that he is discharged, and the sounder with al-Baghawi that he is not.
According to the first view, if he swore and the buyer was discharged, and then the buyer finds a defect in the sold item: if he returns it to the principal and claims the price from him, he has no recourse against the agent; for he admitted that the agent took nothing; if he returns it to the agent and claims the price, he has no recourse against the principal; and the agent's word, with his oath, is that he took nothing from him: our believing the agent in defending himself by his oath does not imply establishing thereby a right against another. If the sold item exits as reclaimable, the buyer has recourse for the price against the agent; for he handed it over to him, and no recourse for him against the principal, for what preceded (Rawdat at-Talibin 3/534, ash-Sharh al-Kabir 5/264, al-Hawi al-Kabir 6/533, at-Tanbih 110, Mughni al-Muhtaj 3/221, Nihayat al-Muhtaj 5/68, Kanz ar-Raghibin 2/875, 876, an-Najm al-Wahaj 5/69, 70, ad-Dibaj 2/328).
As for the Hanbalis, Ibn Qudama, may Allah have mercy on him, said: the third situation is that they differ over the act, the agent saying: I sold the garment and collected the price, and it perished, and the principal saying: you did not sell nor collect, or he says: you sold but collected nothing: the word is the agent's, as Ibn Hamid mentioned; it is the view of the people of opinion; for he possesses the sale and the collection, and his word is accepted concerning both, like the word of the guardian of the woman under constraint in marriage when he marries her. It is also possible that his word is not accepted, and this is one of the two views of al-Shafi'i's companions; for he asserts a right for another against his principal, and that is not accepted, as if he admitted a debt against himself.
If he was commissioned to buy a slave, and he bought him, and they differ over the amount of the purchase, he saying: I bought him for a thousand, and the principal saying: rather you bought him for five hundred, the word is the agent's, for what we mentioned. Al-Qadi, may Allah have mercy on him, said: the word is the principal's, unless he specified to him the purchase at the price he claims, saying: buy me a slave for a thousand, and the agent claims that he bought him at that price: the word is then the agent's; otherwise the word is the principal's; for whoever's word stands on the origin of a thing has his word standing on its attribute. Al-Shafi'i has two views analogous to these two. Abu Hanifa said: if the purchase is upon the liability (dhimma), the word is the principal's; for he is the creditor from whom the price is demanded; if the purchase was made with specific property, the word is the agent's; for he is the creditor: he is the one demanding the return of the surplus over the five hundred. For us: they differ over the agent's act, and the word is his, as if they differed over the sale; and because he is a trustworthy custodian in the purchase: his word stands on the amount of the purchased item's price, like the mudarib, and as if he said: he bought for a thousand, according to al-Qadi (al-Mughni 5/60, 61, al-Kafi 2/254, ash-Sharh al-Kabir 5/248, al-Mubdi' 4/381, al-Insaf 5/397, Kashshaf al-Qina' 3/566).
The jurists differed over the case where the agent claims to have handed back to the principal what he held and the principal denies it, when he was commissioned to sell a thing or buy it: he sold it, collected its price and says: I handed it over to my principal, or he says: I bought it and handed it over to my principal, and the principal denies it. His case is one of two: the first, that he act without a fee: the agent's word is accepted with his oath with the majority of jurists, the Hanafis, Malikis, Shafi'is and Hanbalis according to the madhhab; for he is a trustworthy custodian who took the property for his owner's benefit; the word is therefore his, like the depositary of a deposit. According to one view of the Hanbalis, his word is accepted only with evidence.
The second: that he be an agent for a fee: the jurists differed over this in two views. The first: the Hanafis, the Malikis according to the well-known view, the Shafi'is according to the madhhab and the Hanbalis according to one view hold that the word is the agent's, with his oath, for a fee or without; for if he acts without a fee, he took the item purely for the owner's purpose and resembles the depositary of a deposit; if he acts for a fee, it is because he took the item only for the owner's benefit, and his benefit lies in working upon the item, not in the item itself. The second view: the word is the principal's, unless the agent brings evidence; this is the madhhab with the Hanbalis and one view of the Shafi'is; for he took the property for his own benefit, so his word on restitution is not accepted, like the borrower; whether they differ over returning the item or its price (Rawdat al-Qudat 2/659, ash-Sharh al-Kabir with ad-Dasuqi's gloss 5/76, at-Taj wal-Iklil 4/214, 215, Mawahib al-Jalil 7/172, Tahrir al-Mukhtasar 4/296, 297, Sharh Mukhtasar Khalil 6/82, al-Bahja fi charh at-Tuhfa 1/344, al-Bayan 6/467, Rawdat at-Talibin 3/535, Mughni al-Muhtaj 3/221, Nihayat al-Muhtaj 5/68, Kanz ar-Raghibin 2/875, 876, an-Najm al-Wahaj 5/70, ad-Dibaj 2/328, al-Mughni 5/60, 61, al-Kafi 2/254, ash-Sharh al-Kabir 5/249, al-Mubdi' 4/382, al-Insaf 5/397, 398, Kashshaf al-Qina' 3/567).
Al-Hattab, of the Malikis, may Allah have mercy on him, said: the question contains four views, mentioned by Ibn Rushd in the book of deposit of the Muqaddimat, in the report mentioned, transmitted by Ibn 'Arfa, Ibn Abd as-Salam and the author of at-Tawdih. Ibn Rushd's text is: they differed concerning the agent who claims to have handed to his principal what he received from the creditors on his behalf, or the price of the merchandise he sold, upon four views:
Al-Qadi Abd al-Wahhab, may Allah have mercy on him, said in the sharh of the word of ar-Risala: whoever says: I returned to you what you mandated me upon, is believed; for the agent, the depositary of a deposit and the messenger are trusted custodians between themselves and the principal, the depositor and the sender; so when they mention that they returned to their owners what was handed over to them, that is accepted from them; for the owners of the property entrusted them with that, and their word is thus accepted between them. Likewise, the worker in the qirad (commenda) is a trusted custodian in returning the qirad property between himself and the owner, unless one of the two took the property with evidence: his claim of restitution then does not discharge him, unless he has evidence; for the owner of the property would not have entrusted him had he not secured himself by evidence. End of quotation.
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