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Conceptual Study of Law of Torts and General Defences

The law of tort is a branch of civil law, which consists of various torts or wrongful acts that violate some legal rights vested in a person by law. General defences are a set of defences that one can undertake to escape liability in tort. These are basically the rules of immunity which limit the rules of liability in tort.

Nature and Definitions of Tort

The law imposes a duty to respect the legal rights vested in the members of the society and the person making a breach of that duty is said to have done the wrongful act. As crime is a wrongful act, which results from the breach of a duty recognised by criminal law, similarly breach of contract is the non-performance of a duty undertaken by a party to a contract. In the same way, 'tort' is a breach of duty recognised under the law of torts. For example, violation of a duty not to injure the reputation of a person results in the tort of defamation and the violation of a duty not to defraud another person results in the tort of deceit.

Nature of Tort

In order to understand the true nature of law of tort, it is necessary to distinguish between the following:
Distinction between Tort and Crime
  1. The wrongful acts which are comparatively less serious in nature are considered to be private wrongs and have been labelled as civil wrongs, whereas more serious wrongs have been considered to be public wrongs and are called crimes.

    According to Blackstone,“Wrongs are divisible into two sorts of species, private wrongs and public wrongs. The former are the infringement or privation of private or civil rights belonging to individuals, considered as individuals and are thereupon termed as civil injuries. The latter are preach and violation of public rights and duties which affect the whole community considered as a community and are distinguished by the harsher application of crimes and misdemeanors.”
     
  2. There are various wrongs which are both criminal and tort in nature. For example, assault, defamation, negligence, conspiracy and nuisance. The definition of any one of these wrongs is different under civil and criminal laws.
     
  3. The rules applicable in case of tort are generally different from those in the case of crime. For example, in the case of tortious liability for the wrong of defamation, truth is in itself a defence, whereas in an action for the offence of defamation, the defence of truth can be taken if the publication was made for public good.
     
  4. As tort is considered to be a private wrong, the injured party himself has to file a suit as a plaintiff. If the injured party likes, he may agree to a compromise with the tortfeasor and withdraw the suit filed by him. On the other hand, in the case of crime, the criminal wrong is considered to be a public wrong which means a wrong against the public at large or wrong against the State. The criminal proceedings against the wrongdoer are brought by the State and not by the injured party.
     
  5. In certain cases, the law does not permit a settlement in criminal cases between the wrongdoer and aggrieved party, however, the path of settlement is always possible under law of tort.
     
  6. The end of justice is met by awarding compensation to the injured party in case of tort. However, in criminal cases, the wrongdoer is punished.
     
  7. The idea of awarding compensation to the injured party is to make good the loss suffered by him. The punishment under criminal law protects the society by preventing the offender from committing offences in future and deters him and other offenders from committing wrongs.

Distinction between Tort and Breach of Contract

  1. A tort is the outcome of the breach of such duties which are not undertaken by the parties themselves but which are imposed by law. A breach of contract is the result of the breach of a duty undertaken by the parties themselves.
     
  2. In a contract, the duty is based on the privity of contract and each party owes duty only to the other contracting party.
    For example, if Ram and Mohan make a contract, Ram's duty is towards Mohan only, in the same way Mohan does not owe any duty in respect of this contract to any person other than Ram. That is why, we find the rule that a stranger to a contract cannot sue.
     
  3. Duties imposed by law of torts are not towards any specific individual but they are towards the world at large. Only that person is entitled to sue who suffers damage by the breach of the duty.

    For example, Ram's duty not to defame is not towards Mohan or Shyam or Rohan only, but whosoever is defamed by Ram will be entitled to bring an action against him.
    The case of Donoghue v. Stevenson, shows that the manufacturers of drinks owes a duty of care to every possible consumer of their product.
     
  4. Damages are the main remedy both in an action for the breach of contract as well as in an action for tort. In case of breach of contract, the damages may be 'liquidated' whereas in an action for tort, the damages are always 'unliquidated'. Damages are said to be liquidated when the sum payable by way of damages is predetermined. When the amount payable is not predetermined and the court is at liberty to award such sum at its discretion as it thinks just, the damages are known as 'unliquidated'.

Distinction between Tort and Breach of Trust

In case of breach of trust by the trustee, the beneficiary can claim such compensation which depends upon the loss that the trust property has suffered. In case of breach of trust, if the amount of damages is ascertainable before the beneficiary brings the action, the damages are liquidated, whereas, in tort, the damages are unliquidated. The law of torts has its origin as a part of Common Law, whereas breach of trust could be redressed in the Court of Chancery.

Distinction between Tort and Quasi-Contract

  1. When a person gains some advantage or benefit to which some other person was entitled to, or by such advantage another person suffers an undue loss, the law may compel the former to compensate the latter in respect of advantage so gained. The law of quasi-contract covers such obligations.

    For example, Ram, a businessman leaves goods at Mohan's house by mistake. Mohan treats the goods as his own. He is bound to pay Ram for those goods. In the same way, if Ram and Mohan jointly owe 500 rupees to Shyam, Ram pays the amount to Shyam, Mohan not knowing this fact, pays 500 rupees over again to Shyam, Shyam is bound to repay the amount to Mohan.
     
  2. The main distinction between a quasi-contract and a tort is that the law of quasi-contract gives a right only with respect to money and it is liquidated sum of money. Law of torts, in addition to damages, grants other remedies also. Moreover, the damages under the law of torts are always unliquidated sum of money.

Definitions of Tort

According to Section 2 (m) of the Limitation Act, 1963, “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.”

According to Fraser, “It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.”

According to Salmond, “It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of trust or other merely equitable obligation.”

According to Winfield, “Tortious liability arises from the breach of a duty primarily fixed by the law. This duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”

The basic idea which is indicated by the above given definitions is:

  1. Tort is a civil wrong;
  2. This civil wrong is other than a mere breach of contract or breach of trust;
  3. This wrong is redressible by an action for unliquidated damages.

Is it Law of Tort or Law of Torts

Is it Law of Tort means every wrongful act, for which there is no justification or excuse to be treated as a tort. Is it Law of Torts means, consisting only a number of specific wrongs beyond which the liability under this branch of law cannot arise.

According to Winfield, it is a Law of Tort. For example, if I injure my neighbour, he can sue me under law of tort, whether the wrong committed have a particular name like assault, battery, deceit, slander or, whether, it has no special title at all and I shall be liable if I cannot prove lawful justification.

According to Salmond, there is no Law of Tort, but there is Law of Torts. The liability under this branch of law arises only when the wrong is covered by anyone of the other nominated torts. There is no general principle of liability and if the plaintiff can place his wrong in any one of the pigeon-holes, each containing a Jabelled tort, he will succeed.

This theory is also called Pigeon-hole Theory. If there is no pigeon-hole in which the plaintiff's case could fit in, the defendant has committed no tort. According to Salmond “Just as the criminal law consists of a body of rules establishing specific offence, so the law of torts consists of a body of rules establishing specific injuries.” Due to difference in approach, Winfield's book on the subject is entitled Law of Tort', whereas Salmond's book is entitled Law of Torts.

Each theory received some support. In 1702, Ashyby v. White clearly established in favour of the first theory (Law of Tort) and recognised the principle ubi jus ibi remedium. CJ Holt observed that “if man will multiply injuries, action must be multiplied too, for every man who is injured ought to have recompense.” Similarly in 1762, CJ Pratt said, “Torts are infinitely various not limited or confined.” Pollock also favoured this view. This theory is also supported by the creation of new torts by the courts of law.

For example, the tort of inducement of breach of contract had its origin in Lumley v. Gye, deceit in Pasley v. Freeman, intimidation in Rookes v. Barnard, inducement to a wife to leave her husband in Winsmore v. Greenbank and negligence as a separate tort in Rylands v. Fletcher.

Latter Winfield made a modification in his view regarding his own theory. Now he thought that both his and Salmond's theories were correct, the first theory from a broader point of view and the other from a narrower point of view. Winfield said that, “From a narrow and practical point of view, the second theory will suffice, but from a broader outlook, the first is valid.”

General Principles of Tortious Liability

In order to constitute a tort, it is essential that the following two conditions are fulfilled:
  1. There must be some act or omission on the part of the defendant.
  2. The act or omission should result in legal damage (injuria) which means violation of a legal right vested in the plaintiff.

Act or Omission

In order to held a person liable under the law of tort, he/she must have done an act which he/she was not expected to do or he must have omitted to do something which he was supposed to do. Either a positive wrongful act or an omission which is illegally made makes the person liable.

For example, Ram commits the act of trespass or publishes a statement defaming another person, or wrongfully detains another person, he can be held liable for trespass, defamation or false imprisonment respectively.

In the same manner, when there is a legal duty to do some act and a person fails to perform that duty, he can be held liable for that omission.

For example, if a municipal corporation, which is responsible for the maintenance of sewage holes, fails to put a cover on the hole and a person falls in the open hole and dies as a consequence, the municipal corporation would be liable for such omission.

Similarly, if a corporation is responsible for maintaining public parks, fails to put proper fencing to keep the children away from a poisonous tree and a child plucks and eats the fruits of that tree and dies, the corporation will be held liable for such omission.

It is important to note that the wrongful act or omission must be recognised by law. In case there is moral or social wrong, there cannot be a liability for the same.

For example, if someone fails to save a drowning person or help a starving beggar, it is only a moral wrong and therefore, no liability can arise for that unless it can be proved that there was a legal duty to save a drowning person or help a starving beggar.

Legal Damage
In order to succeed in an action for tort, it is necessary for the plaintiff to prove that there has been a legal damage caused to him. It means that it is mandatory to prove that there was a wrongful act or omission which caused the breach of a legal duty or violated the legal right vested in the plaintiff. Unless and until a legal right is violated, no action arises under the law of torts.

However, in case a legal right has been violated, the same is actionable whether, as a consequence the plaintiff has suffered any loss or not. This rule is expressed by the maxim, 'Injuria sine damno'. Injuria means violation of a right vested in the plaintiff by law or an unauthorised interference, howsoever trivial, with the plaintiff's right.

Damnum means substantial harm, loss or damage in respect of money, comfort, health or the like. It means that if there has been injuria or the violation of a legal right and the same has not been coupled with a damnum or damage to the plaintiff, the plaintiff can still go to the court of law because no violation of a legal right should go unredressed.

However, when there is no violation of a legal right, no action can lie in a court of law even though the act of defendant has resulted in some loss or harm or damage to the plaintiff. This is expressed by the Maxim 'damnum sine injuria'. It means that damage without the violation of a legal right is not actionable in the court of law.

Injuria Sine damno

This maxim means violation of a legal right without causing any damage, or harm or loss to the plaintiff. In general there are two kinds of torts, namely, those torts which are actionable per se, i.e. actionable without the proof of any damage or loss. For example, trespass to land is actionable even though no damage had been caused to the plaintiff.

Some of the leading cases which explain the maxim injuria sine damno are as follows:
Ashby v. White
In this case, the plaintiff was successful in his action against the defendant even though the defendant did not cause any damage. In the given scenario, plaintiff was a qualified voter at the Parliamentary election, but the defendant, a returning officer wrongfully refused to take plaintiff's vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote won the election inspite of that, however, it was held that the defendant was liable.

According to CJ Holt, “If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it and a remedy, if injured in the exercise or enjoyment of it and indeed, it is a vain thing to imagine a right without a remedy; want of right and want of remedy are reciprocal.”

Bhim Singh v. State of Jammu and Kashmir
In this case, the petitioner, an MLA of J and K Assembly was detained wrongfully by the police when he was going to attend the Assembly Session. He was not produced before the Magistrate within the prescribed period. Due to this, the concerned member was deprived of his constitutional right to attend the session. Fundamental Right to personal liberty under Article 21 was also violated. By the time, the petition was decided by the Supreme Court, Bhim Singh was released, but by way of consequential relief, exemplary damages amounting to rupee 50,000 were awarded to him.

Damnum Sine injuria

It means damage which is not coupled with an unauthorised interference with the plaintiff's lawful right. Causing of damage to another person is not actionable in law unless legal right of the plaintiff is violated.

Some of the important cases which explain the above maxim are as follows:

Gloucester Grammar School Case
In this case, the defendant, a school master, set up a rival school to that of the plaintiff. Due to competition, the plaintiff had to reduce the fees from 40 pence to 12 pence per scholar per quarter. In this scenario, it was held that the plaintiff had no remedy for the loss suffered by him. According to Justice Hankford:
“Damnum may be abseque injuria, as if I have a mill and my neighbour builds another mill whereby the profit of my mill is diminished, I shall have no action against him, although I am damaged, but if a miller disturbs the water from going to my mill, or does any nuisance of the like sort, I shall have such action as the law gives.”

Mogul Steamship Co v. McGregor Gow and Co
In this case, a number of steamship companies combined together and drove the plaintiff company out of business by offering reduced freight. The House of Lords held that the plaintiff had no cause of action as the defendants had by lawful means acted to protect and extend their business and increase profits.

Action v. Blundell
In this case, the defendants by digging a coalpit intercepted the water which affected the plaintiff's well, at a distance of about one mile. It was held that defendants are not liable. Observation was made, “The person who owns the surface may dig therein and apply all things, which are found there, to his own purposes, at his free will and pleasure and that if in the exercise of such rights, he intercepts or drains off the water collected from underground springs in the neighbour's well, this inconvenience to his neighbour falls within description damnum abseque injuria which cannot become the ground of action.”

Chesmore v. Richards
In this case, the plaintiff, a mill owner, was for the past 60 years, using water for his mill from a stream which was fed by rainfall percolating through underground strata to the stream, but not flowing in defined channels. The defendants sunk a well on their land and pumped large quantities of water, which would otherwise have gone to the plaintiff's stream, thereby causing loss to the plaintiff. Foy this, the defendants were not held liable.

Ushaben v. Bhagyalaxmi Chitra Mandir
In this case, the plaintiff sued for a permanent injunction against the defendants to restrain them from exhibiting the film named 'Jai Santoshi Maa'. It was contended that the film hurt the religious feelings of the plaintiff in so far as Goddesses Saraswati, Laxmi and Parvati were depicted as jealous and were ridiculed.

In this case, it was observed that hurt to religious feelings had not been recognised as a legal wrong. In addition to this, no person has a legal right to enforce his religious views on another or to restrain another from doing a lawful act, merely because it did not fit in with the tenets of his particular religion. Since, there was no violation of a legal right, request of injunction was rejected.

Mental Element in Tortious Liability

Mental element is an important element in most of the crimes. Under criminal law, mere act of a person is not enough to create his liability. Mens rea or a guilty mind is also required. A person, therefore, is not simply punishable for something which he never meant, or the consequences of which he could not foresee. It is not a simple task to generalize the liability under law of tort.

The position under the law of torts is as follows:

Fault When Relevant

In many of the branches of law of torts such as battery, deceit, malicious prosecution, assault, false imprisonment and conspiracy, the state of mind of a person is relevant for ascertaining his liability. We need to analyse whether a particular wrongful act was done maliciously or intentionally. Sometimes, the conduct of the defendant is compared with that of a reasonable man and he is held liable only if his conduct falls below the standard which is expected of a reasonable man.

When the circumstances demand care and a person fails to perform the duty to take care, he is liable for the tort of negligence. However, if the defendant has taken such care as was expected from him, he is not liable for the damage to the plaintiff.

Mental element may be relevant in another way also. If the defendant's conduct is innocent in so far as the act done was due to an inevitable accident, he may be excused from liability. For example, if the defendant's horses, for no fault on his part, cause injury to somebody on a public highway, the defendant can take the defence of inevitable accident.

The defence of necessity may also be available in the same way. Necessity can be pleaded when the defendant's act is not actuated by a wrongful intent, but he is compelled by the circumstances to cause some smaller harm intentionally in order to prevent a greater evil.

It is a good defence to an action for trespass that the same has been committed to prevent the spread of fire to the adjoining land. In the same way, pulling out a drowning person out of water, performing a surgery of an unconscious person by a surgeon to save the former's life or forcibly feeding a hunger-striking prisoner are not actionable.

Liability without Fault

In some cases, the mental element is not relevant and the liability arises even without any wrongful intention or negligence on the part of defendant. In these cases, the innocence of the defendant or an honest mistake on his part is no defence. Tort of conversion is an example of the same.

Thus, an auctioneer, who sells goods, under an authority from a customer having no title to the goods, is liable for conversion, even though at the time of sale he honestly believed that, customer was the true owner. Similarly, in case of defamation, the defendant can be made liable when he did not intend to defame but his act turns out to be defamatory. In case of vicarious liability also, a person may be held liable when he himself was not at fault.

The rule of strict liability was laid down by Rylands v. Fletcher. Under this rule, if a person makes non-natural use of his land by collecting there something which is likely to do mischief by escape, he will be liable if the thing so collected escapes and causes damage. In such a case, it would be no defence to say that defendant was not negligent in collecting the thing or for its escape.

Liability is also strict when a person knowing the dangerous nature of an animal keeps the same. In the same way, in case of hazardous and inherently dangerous industry, the Principle of absolute liability has been recognised.

General Defences

When the plaintiff brings an action against the defendant for a particular tort, providing the existence of all the essentials of that tort, the defendant would be liable for the same. However, the defendant may avoid his liability by taking the plea of some defence.

There are some specific defences, which are peculiar to some particular wrongs, e.g. in an action for defamation, the defences of privilege, fair comment or justification are available. There are some general defences which may be taken against action for number of wrongs.

For example, the general defence of 'Consent' may be taken, whether the action is for trespass, defamation, false imprisonment, or some other wrongs.

Some of the important general defences are as follows:

Volenti non Fit Injuria
According to the principles of law of torts, if a person consents to the infliction of some harm upon himself, he has no remedy for that. If the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain for that and his consent serves as a good defence against him. No man is allowed to enforce a right which he has voluntarily waived or abandoned.

The consent to suffer the harm may be either implied or express. If someone invites a person to his house, then he cannot sue the person invited for trespass, nor can a person sue the surgeon after submitting himself to a surgical operation because a person has expressly consented to these acts. In the same manner, no action for defamation can be brought by a person who agrees to the publication of a matter defamatory of himself.

In order to avail the defence of consent, the act causing the harm must not go beyond the limit of what has been consented.

For example, a hockey player has no right of action if he is hit while the game is being lawfully played. But if there is a deliberate injury caused by another player, then the defence of volenti cannot be pleaded. In the same way, if a surgeon negligently performs an operation, he cannot avoid the liability by pleading the defence of consent.

Some of the leading cases which explain the above principle are as follows:

  1. Hall v. Brooklands Auto Racing Club
  2. Padmavati v. Dugganaika
  3. Wooldridge v. Sumner
  4. Thomas v. Quartermaine
  5. Illot V. Wilkes

The consent given, as described above, must be free. In order to avail the defence of consent, it is necessary to show that the plaintiff's consent to the act done by the defendant was free. If the consent of the plaintiff has been obtained by fraud or under compulsion or under some mistaken impression, such consent does not serve as a good defence. Moreover, the act done by the defendant must be the same for which the consent is given.

For example, if a guest is requested to sit in the drawing-room and without any authority or justification, he enters the bedroom, he will be held liable for trespass and he cannot take the defence of consent to visit the house.

The leading case explaining free consent is Lakshmi Rajan v. Malar Hospital Ltd, in this case, the complainant aged 40 years noticed the development of a painful lump in her breast. The lump had no effect on her uterus, but during surgery, her uterus was removed without justification.

Plaintiff the Wrongdoer

According to one of the principles of law of contract, no court will aid or help a person who found his cause of action upon an immoral or an illegal act. The maxim 'Ex turpi causa non oritur actio' means, from an immoral cause no action arises. It is vague to say whether the defendant can take such a defence under the law of torts and avoid the liability by pleading that at the time of defendant's wrongful act, the plaintiff was also involved in committing a wrongful act.

The mere fact that the plaintiff was a wrongdoer does not disentitle him from recovering from the defendant for latter's wrongful act. The plaintiff may have to answer for his wrongful act but he does not forfeit his right of action for the harm suffered.

According to Sir Frederick Pollock, when the plaintiff himself is a wrongdoer, “he is not disabled from recovering in tort unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of the same transaction.”

So, it is important to look as to what is the connection between the plaintiff's wrongful act and the harm suffered by him. If his own act is the determining cause of the harm suffered by him, he has no cause of action. However, if the wrongful act of the defendant and not of the plaintiff, is the determining cause of the accident, the defendant will be liable.

Inevitable Accident

The term 'accident' means an unexpected injury which could not have been foreseen and avoided, inspite taking reasonable care on the part of defendant, it is inevitable accident.
According to Pollock:
“It does not mean absolutely inevitable, but it means not avoidable by any such precautions as a reasonable man doing such an act then and there, could be expected to take.”

So it is a good defence, if the defendant is successful in proving that he neither intended to injure the plaintiff nor could he avoid the injury by taking reasonable care.

Some of the leading cases which explain the principle of inevitable accident are as follows:

  • Stanley v. Powell
  • Assam State Cooperation etc. Federation Limited v. Smt Anubha Sinha
  • Shridhar Tiwari v. UP State Road Transport Corporation
  • Holmes v. Mather
  • Brown v. Kendall
  • Padmavati v. Dugganaika
  • Nitroglycerine v. Evans
  • National Coal Board v. Evans

Act of God

Act of God (Vis Major) is a good defence. The principle of strict liability i.e. the rule in Rylands v. Fletcher, also recognises it as a valid defence for the purpose of liability under the rule. Act of God is a kind of inevitable accident in which the Act of God results in loss which arises out of the working of natural forces like storms, tides, volcanic eruptions, heavy rainfall and tempests. Important case related to Act of God is Nichols v. Marsland.

Private Defence

The law allows use of reasonable force to protect one's person or property. If the defendant uses the force which is required for self-defence, he will not be held liable for harm caused. The use of force is justified only for the purpose of defence. The basic requirement is that there should be imminent threat to the personal safety or property.

For example, Ram would not be justified in using force against Mohan, merely because Ram thinks that Mohan would attack him some day. It is also mandatory that such force as is absolutely necessary to repel the invasion should be used, i.e. if Ram strikes Mohan, Mohan cannot justify drawing his sword and cutting of his hand. The force used should not be excessive. The necessary force depends on the circumstances of each case.

Some of the leading cases which explain the principle of excessive force used are as follows:

  • Bird v. Holbrook
  • Ramanuja Mudali v. M Gangan
  • Collins v. Renison

Mistake

Mistake, whether of fact or of law, is generally no defence to an action for tort. If someone wilfully interferes with the rights of another person, it is no defence to say that he had honestly believed that there was some justification for the same, when, in reality, there was no such justification.

For example, if someone enters on the land of another thinking that to be one's own is trespass, if someone takes away the umbrella of another person thinking that to be one's own or driving of plaintiff's sheep amongst one's own heard, is trespass to goods and injuring the reputation of another-without any intention to defame is defamation. Famous case which explains the concept of mistake is, Consolidated Company V. Curtis.

Necessity

If an act causing damage is under a necessity to prevent a greater evil is not actionable even though the harm is caused intentionally. It is important to distinguish necessity and private defence. In cases of necessity, there is an infliction of harm on an innocent person whereas in private defence, harm is caused to a plaintiff who himself is a wrongdoer.

There is also a distinction between necessity and inevitable accident, because in necessity, the harm caused is an intended one, whereas in inevitable accident, the harm is caused inspite of the best effort to avoid it.

Some of the common examples of necessity are, throwing goods overboard a ship to lighten it for saving the ship or persons on board the ship, or pulling down a house to stop a further spread of fire, or for a competent surgeon to perform an operation of an unconscious person to save his life.

The important cases which explain the principle of necessity are as follows:

  • Leigh v. Gladstone
  • Cope v. Sharpe Statutory Authority
If the legislature authorises or directs an act to be done which results in the damage, is not actionable even though it would otherwise be a tort. When a particular act is done under the authority of an Act, it is a good defence and the injured party has no remedy except to claim for such compensation as provided by the statute.

Immunity under statutory authority is not only for the harm which is obvious, but also for that harm which is incidental to the exercise of such authority.

Leading cases which explain the concept of statutory authority are as follows:
  1. Vaughan v. Taff Valde Rail Co
  2. Hammer Smith Rail Co v. Brand

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