When entering into a legal agreement, it is not unusual for one of the parties to ask the other to provide some security so as to ensure that the latter's obligations under the agreement will be fulfilled. There are two basic forms of security, personal and real. In personal security for a loan, the borrower arranges for a third party to come forward and to promise the lender that he will fulfil the borrower's obligations in the event that the borrower does not make interest payments or repay the principal. In real security, the borrower pledges some of his property, either movable or immovable, as security to the creditor. If the borrower defaults, the creditor has the right to seize the property pledged as security, and, if he wishes, to sell it for cash in lieu of repayment.
1 For a description of the physical characteristics of the horoi, see Fine J. V. A., Horoi: Studies in Mortgage, Real Security, and Land Tenure in Ancient Athens (Hesperia Suppl. 9 (Princeton, 1951)), pp. 44–6. This work will hereafter be referred to by the author's name only.
2 For the purpose of this kind of horos, see Fine, pp. 42–3; Finley M. I., Studies in Land and Credit in Ancient Athens, 500–200 B.C. (New Brunswick, 1952), pp. 10–21. Finley's work was reprinted by Rutgers University Press in 1985 as a volume in its Transactions series. The reprinted edition contains a valuable new introduction by P. Millett, which provides a critical review of recent scholarship about the horoi. Millett's introduction also provides the texts of all horoi published since the appearance of Finley's original work. All references in this article will be to the 1985 edition, which will be cited by the author's name only. Millett's introduction to this edition will be cited as ‘Millett in Finley’. When citing the texts of the horoi, I use the numbers assigned by Finley and Millett (e.g. horos no. 34, horoi nos. 6, 8, 10).
3 e.g. horos no. 61.
4 e.g. horoi nos. 14, 17, 18, etc.
5 Dem. 33.10; [Dem.] 49.5, 52, 53; 56.3.
6 Horoi nos. 1, 2, 2A, 4, 5, 6, 7. The term is restored on horos no. 3A. Since horos no. 3 does not actually contain the word ὑποκειμ⋯νης, I have excluded it from this category, although Finley placed it under the rubric hypotheke. Nor have I included horoi nos. 80A and 81A. For a discussion of the idiosyncratic formula found on these horoi, see Harris E. M., ‘When is a Sale Not a Sale? The Riddle of Athenian Terminology for Real Security Revisited’, CQ 38 (1988) 351–81, at pp. 359 and 379 n. 84. This article will hereafter be referred to by the author's name only.
7 This formula is found or reasonably restored in a total of 125 texts. There are 92 ir Appendix I of Finley, 22 in Appendix III of Finley, and 14 in Millett in Finley. Pringsheim F. ‘Griechische Kauf-Horoi’, in Festschrift Hans Lewald (Basel, 1953), pp. 143–60, argued thai horoi nos. 112, 113, 114, and 114A publicized sale, not real security. Cf. the same author's Greek Law of Sale (Weimar, 1950), pp. 163–5. For trenchant criticisms of Pringsheim's arguments, see Millett in Finley, pp. xv–xviii. For an explanation of the omission of the phrase ⋯π⋯ λὑσει on these horoi, see E. M. Harris, ‘Women and Lending in Classical Athens: A Horos Re-Examined’, Phoenix forthcoming. The phrase may also be missing from horos no. 18A. See Pritchett W. K., AHR 38 (1952), 338.
8 For the terminology employed by the orators, see Harris, pp. 361–77.
9 The view that the Athenians had three types of real security goes back at least as far as Hitzig H. F., Das griechische Pfandrecht (Munich, 1895), and is accepted by both Finley and Fine.
10 Harris, pp. 358–79.
11 Ath. Pol. 56.7. H. Rackham in his Loeb translation of the passage incorrectly translates the word ⋯ποτιμ⋯ματα as ‘rents’.
12 It is generally agreed that the horoi containing the word ⋯ποτίμημα or ⋯ποτιμήμτος followed by either παιδ⋯ or παισ⋯ with the name of the father in the genitive were set up in connection with leases of orphans' property. See Finley 38–9, Fine 96–8. This formula is found on horoi nos. 117, 118, 119, 120, 121, 125, 126, 126B, 126C, 126D, 126E. The formula is reasonably restored on horoi nos. 123, 126A. On four horoi we find the genitive παιδ⋯ς or πα⋯δων horoi nos. 122, 124, 129, 129A. The genitive is reasonably restored on horos no. 120A. The word ⋯ρϕ⋯νοις is found on only two horoi, nos. 116 and 128, which also use the perfect passive participle ⋯ποτετιμημ⋯νων instead of the noun ⋯ποτ⋯μηα (-τος). Horos no. 130 from Arcesine on Amorgos also belongs in this category. For a discussion of horos no. 131, see Section.
13 For apotimema used in connection with dowry, see Dem. 30, passim. The standard formula on the horoi set up on property pledged to secure the return of a dowry is ⋯ποτ⋯μημα προικ⋯ς, with the name of the woman for whom the dowry was given in the dative. This formula is found on horoi nos. 133, 134, 135, 135A, 136, 137, 138, 139, 140, 142, 148, 152. The formula is reasonably restored on horoi nos. 144, 149, 151, 152A. On two horoi we find the genitive of ⋯ποτ⋯μημα horos no. 132 (⋯ποτιμημάτων) and horos no. 141 (⋯ποτιμήματος). On six horoi the noun is replaced by the perfect passive participle of the verb followed by προικ⋯ς: horoi nos. 143, 145, 147, 148A, 153. On horos no. 150 there is a slight variation (⋯ν προικ⋯ instead of προικ⋯ς). The name of the woman is always in the dative except on horoi nos. 145 and 148A where it is in the genitive. On horoi nos. 146 and 146B the word προικ⋯ς is found without the word ⋯ποτίμημα.
14 Translation: ‘Apotimetai and apotimema and apotiman and the things related to them. Those who leased the estates of orphans from the archon used to furnish securities for (the payment of) rent. The archon was required to send out some persons to receive (or evaluate) the securities. The securities which were received (or evaluated) were called apotimemata, those who were sent out to receive (or evaluate) them were called apotimetai, and the action was called apotiman. Men in that period were also accustomed, if the relatives gave a dowry for a woman who was being married, to demand from her husband something equivalent in value to the dowry as a security, such as a house or a plot of land. The same is also true for other (kinds of) debts.’
15 Fine, pp. 62, 92, 105 (‘… the Athenians undoubtedly on occasions employed this term, as they did other technical expressions, rather loosely’); Harrison A. R. W., The Law of Athens: Family and Property (Oxford, 1968), p. 254 (‘Once more we are hampered by the absence of a developed technical terminology. This makes it difficult to mark in as sharp outline as we should like the distinctions between various kinds of real security’); Finley M. I., ‘Some Problems of Greek Law: A Consideration of Pringsheim on Sale’, Seminar 9 (1951), 89. One should compare the distinction between nomos and psephisma that was strictly observed in regard to motions enacted by the Assembly and by the nomothetai respectively. See Hansen M. H., ‘Nomos and Psephisma in Fourth-Century Athens’, GRBS 19 (1978), 315–30.
16 Finley, pp. 38–52; Wolff H. J., ‘Das attische Apotimema’, in Festschrift für Ernst Rabel (Tubingen, 1954), 2.293–333. This article will hereafter be cited by the author's name only. Millett in Finley, whose review of recent scholarship is generally thorough, makes no reference to this article.
For references to earlier discussions of apotimema, see Fine, Finley, and Wolff. Harrison (n. 15, above), pp. 293–303, summarizes the view of these and other scholars, but makes no original contribution to the debate. Germain L. R. F., ‘Une sŭeté mal connue: l'apotimema attique. Étude de la troisième famille d'apotimema’, in Studi in onore di Arnaldo Biscardi (Milan, 1982–1984) 3.445–57, offers some speculations about the use of apotimema in agreements other than the leases of orphans' estates and dowries. His views are criticized Millett by P., Lending and Borrowing in Ancient Athens (Cambridge, 1991), p. 223. Fine's view of apotimema is based on a mistaken conception of hypotheke; see Millett in Finley, pp. xiii–xiv; Harris, pp. 352–6.
17 For criticism of Finley's analysis of the difference between hypotheke and prasis epi lysei, see Harris, pp. 356–8.
18 Finley (p. 44) believed that the ‘official evaluators’ did not ‘operate in monetary terms’. If so, in what terms did they operate?
19 Finley adds that such ‘a procedure would be pointless since it was the orphan's property that was to be restored to him when he came of age, not its price.’ But if the orphan's property was damaged or contained movables that were stolen, then the price would have been of some concern.
20 Fine, pp. 104–6, was at a loss for an explanation of these horoi.
21 Finley, p. 46. Finley appears to contradict himself here, since above he seems to imply that the fixed value was not reckoned in monetary terms.
22 Finley, pp. 51–2. Unlike Fine, Finley (pp. 47, 51) dismisses any link between apotimema and family matters as ‘irrelevant’.
23 A similar phrase is restored with a high degree of probability in IG ii2 2494, lines 7–8.
24 For the dike exoules, see Harrison (n. 15, above), pp. 217–21.
25 If an orphan's inheritance consisted partly of slaves, which were included in the lease, his ownership would be protected by the law of theft (dike klopes). Cohen D., The Athenian Law of Theft (Munich, 1983), pp. 10–33, claims that the term klope was limited to larceny and did not extend to cases of embezzlement, but his attempt to find such a distinction in Athenian Law rests on an anachronistic comparison with Common Law and is contradicted by the use of the word klope to refer to embezzlement by public officials (Aeschin. 1.110–11; 3.9–10; Ath. Pol. 54.2; Dem. 22.65; 24.112; 58.15). I hope to discuss the topic at length elsewhere.
26 Ar. Nub. 1156; Dem. 27.28, 38, 50, 64; 34.26; [Dem.] 56.30, 32, 33, 43. I know of no passage where the word refers to leased property. The word is mistranslated by J. H. Vince as ‘estates’ in his Loeb translation of Dem. 1.15. The passage compares Athenian policy to borrowing at a high rate of interest. The context indicates that the word must refer to the principal of a loan.
27 Horos no. 102, line 15; Dem. 37.5–6 with the discussion in Harris, pp. 365–6, 371–3.
28 Fine, pp. 103–5, made the same mistake. The interest rate of 14% per annum is comparable to other interest rates attested in this period. See Millett (n. 16, above), pp. 98–108.
29 Wyse W., The Speeches of Isaeus (Cambridge, 1904; repr. New York, 1979), pp. 25–9 provides a good discussion of the passage, but does not observe how Menecles' lease differed from the standard leases of orphans' property. See Fine, p. 109 n. 60 for references to other discussions of the passage.
30 Fine, pp. 139–40, uses Dem. 31.6 as evidence for this theory about hypotheke. For criticism of his theory, see Harris, pp. 353–4. In that article, I endorsed Finley's view of dotal apotimema. I now retract that endorsement.
31 Horos no. 146 exhibits similar language, but the term ⋯ποτίμημα is missing. Wolff, pp. 316–17, made the same criticisms of Finley.
32 Wolff, p. 318: ‘Auf das technische ⋯ποτ⋯μημα angewendet, muss das heissen, dass dieses ein Gegenstand war, durch dessen Hingabe zu einem vereinbarten Wert der Schuldner eine ihm drohende, auf Geldverurteilung gerichtete Klage von sich abwenden konnte.’
33 The details of the plot are a bit murky; it appears that the conspirators planned to bid for the lease themselves. The passage thus indicates that the guardians themselves could bid for the lease of their wards' property (37: οἱδ' ⋯μισθο⋯ντο). Cf. Harrison (n. 15, above), pp. 105–6. The practice raised the eyebrows of Wyse (n. 29, above), pp. 526–7, who felt it somehow violated the sacred bond of trust between guardian and ward. His view is needlessly moralistic. The practice made good sense, for it gave the guardian an incentive to manage his ward's property efficiently. Without such a contract, the guardian could not legally profit from his management of the orphan's property and thus had no reason to increase its productivity. As lessees, they could exploit the property for their own profit (τ⋯ς προσ⋯β⋯νοιεν) and would have a strong motive for increasing the revenues derived from it. The orphan would receive a share of these profits through the lease and have his property well maintained, if not substantially improved. Demosthenes (27.64) gives several examples of orphans who profited handsomely from the leasing of their estates.
34 Wolff, pp. 301–3, with references to earlier discussions.
35 Wyse (n. 29, above), p. 525; Roussel P., ‘Isée: discours (Paris, 1922), p. 104; Forster E. S., Isaeus (Cambridge, MA, 1927), p. 225: ‘part of the property might be leased and part might be used as security.’
36 Finley, pp. 41–2: ‘some of the property would be leased in the children's names and some put up as apotimema.’
37 Fine, p. 100: ‘it seems fantastic that in a μ⋯σθωσις οἴκου part of the estate should serve as security for the lessees.’
38 MacDowell D. M., “The Oikos in Athenian Law’, CQ 39 (1989), 13–15, thinks that τ⋯ μ⋯ν means ‘part of the property’, but that the δ⋯ is a simple connective and does not respond to the μ⋯ν. But if the δ⋯ does not respond to the μ⋯ν, τ⋯ μ⋯ν cannot mean ‘part of the property‘. MacDowell suggests that the part of the property to be leased was that which belonged to Euctemon's sons, the boys' fathers. But if Euctemon's sons left property at their death, guardians would have been appointed at that time to look after their sons, not several years later. MacDowell fails to see the outrageous part of the scheme, which caused the court to reject the conspirators' proposal. This was that they attempted to have the boys registered as orphans who had inherited their grandfather's property before they were actually orphaned by the death of their adoptive grandfather Euctemon. The words ζ⋯ντος ἔτι το⋯ Εὐκτήμονος (with the stress on ἔτι) bring this out clearly.
39 Pelliccia H., ‘Anacreon 13 (358 PMG)’, CP 86 (1991), 35. Cf. Denniston J. D., The Greek Particles2 (Oxford, 1954), p. 371.
40 Wolff, pp. 303–5 with Dem. 41.27 and 47.57. The verb in the latter passage (εἴη…τετιμημ⋯να) is mistranslated by Murray A. T., Demosthenes V: Private Orations (Cambridge, MA, 1939), p. 311(‘mortgaged to secure her marriage portion’).
41 For other examples of similar phrases, see Wolff, p. 306 n. 55.
42 For the genitive of purpose, see Smyth H. W., Greek Grammar, rev. by Messing G. M. (Cambridge, MA, 1956), p. 331. Compare the similar use of the genitive in the phrase τιμ⋯ς ⋯νοϕειλομ⋯νης on horos no. 3 (‘for the price owing’). Smyth (pp. 376–7) also lists passages where εἰς can be used to express purpose and ⋯ν can indicate cause.
43 Finley, p. 266 n. 23, suggested that the word ⋯ποτ⋯μημα had been accidentally omitted on horos no. 175 as it appears to have been on horos no. 146.
44 Finley, P. 49, correctly noted the ‘dowry was irrelevant and accidental in this case, so to speak’. He aptly drew attention to Libanius' interpretation of the transaction (Dem. 41, hypoth. 1): τ⋯ν οἰκ⋯αν τ⋯ς ἄλλης οὐσ⋯ας ⋯ξελεῖν κα⋯ ταὑτην εἰς τ⋯ χρ⋯ος δο⋯ναι.
45 Isaeus fr. 29 (Thalheim). Not e also Lysias fr. 52 (Thalheim) [= Harpocration s.v. τ⋯μημα]: οὗτοι ϕ⋯σκοντος μισθαι κα⋯ τ⋯μημα κατασ⋯σασθαι. Note the similarities between the phraseology in this fragment an d that used in Is. 6.36.
46 For a thorough discussion of this inscription, see Whitehead D., The Demes of Attica (Princeton, 1986), pp. 165–9. Cf. Finley, p. 284 n. 39. For the simplex used in place of the compound, see the previous note.
47 For the eranos-loan, see Maier G., Eranos als Kreditinstitut (Diss. Erlangen, 1969).
48 Finley, pp. 45–6, observed that the term ⋯ποτ⋯μημα was used in loans, but gave no explanation for its use in this context. Note that these cases pose a serious problem for his analysis of the term, which relies on a strict distinction between the procedure for taking security in a loan and that followed in dowry and the leases of orphans' property.
49 Written copy of agreement: horoi nos. 1, 2, 2A, 3A, 6, 11, 13, 17, 27, 39, 65. Cf. horoinos. 9 (Amorgos), 10 and 104 (Lemnos). The word γραμματεῖον on horoi nos. 107 and 108 (Amorgos) probably refers to a written copy of the agreement. On these documents, see Finley, pp. 21–7. For the meaning of the term συνθ⋯και, see Kussmaul P., Synthekai: Beiträge zur Geschichte des attischen Obligationenrechtes (Diss. Basel, 1969).
50 For the verbs ὑποτιθ⋯ναι, τιθ⋯ναι and ὑποκεῖσθαι used to express the idea of real security in loans, see Dem. 27.9; 28.18; 35.11; 41.11; [Dem.] 49.11, 12, 35, 50, 52, 53, 54; 50.55; 53.10, 12–13; 56.4, 38; Aeschin. 3.104; Is. 5.21–2; 6.33–4; Isocr. 21.2; Hdt. 2.136.
51 Horoi nos. 21A, 49, and 82. Horoi 82A and 93 may also belong in this category, but are too fragmentary to allow for certain restorations.
52 Finley, p. 233 n. 1; p. 242 n. 51; Harrison (n. 15, above), p. 256; MacDowell D. M., The Law in Classical Athens (London, 1978), pp. 144–5 (‘property valued and set apart’). Cf. the phrase used by Libanius (n. 44): τ⋯ν οἰκ⋯αν τ⋯ς ἄλλης οὐσ⋯ας ⋯ξελεῖν.
53 Finley, p. 117, grudgingly admitted this. Other examples of evaluating the security: Dem. 35.18; [Dem.] 49.52. The latter passage reveals that Pasion regularly checked the value of all items given to him as security.
54 This is not the place to enter into the debate about the existence of consensual contracts in Classical Athens. Pringsheim F., Greek Law of Sale (Weimar, 1950), pp. 14–57, denied their existence, as did Wolff H. J., ‘Die Grundlagen des griechischen Vertragsrecht’, ZSS 74 (1957), 26–72. Gernet L., ‘Le Droit de la vente et la notion du contrat en Grèce d'après M. Pringsheim’, RDFE 29 (1951), 560–84, rightly questions much of Pringsheim's analysis and his attempt to explain away such passages as [Dem.] 56.2.
55 The borrower's right to redeem the security was strictly speaking not part of the loan agreement, but part of an accessory agreement. See Harris, pp. 364–5.
56 On leases in general, see Behrend D., Attische Pachturkunden: ein Beitrag zur Beschreibung der μ⋯σθωσις nach der griechischen Inschriften (Munich, 1979).
57 Requirement to plant certain crops: IG ii2 2494, lines 11–16. Restrictions o n ploughing: IG ii2 2498, lines 17–21.
58 For the rights of the lessee, see IG ii2 2492, lines 9–12 (right to use property for duration oflease), 29–31 (breach of agreement by lessors makes them liable to legal action); 2496, lines 22–4 (lessors promise to warrant lease and promise to pay the penalty for failing to do so).
59 For the tendency of the creditor to describe a secured loan as a ‘sale‘, see Harris, pp. 362–75.
60 The two most important studies of gift-giving in marriage are Finley M. I., ‘Marriage, Gift, and Sale in the Homeric World’, RIDA3 2 (1955), 167–94 and Lacey W. K. C., ‘Homeric HEDNA and Penelope's KYRIOS’, JHS 86 (1966), 55–68. Hom . Il. 9.144–8 implies that it was customary for gifts to be given to the husband of the bride. Morris I., ‘The Use and Abuse of Homer’, CA 5 (1986), 104–12, has mistaken notions about the difference between marriage in the Homeric world and marriage in Classical Athens. As a result, he fails to see the similarities and continuity between the two forms of marriage. Wolff H. J., ‘Marriage Law and Family Organization in Ancient Athens’, Traditio 2 (1944), 53–65, was written before the works of Finley and Lacey and consequently does not understand the historical origins of the dowry. For brief, but trenchant, criticisms of Wolff's view of the dowry, see Finley, p. 243 n. 53. Despite its many flaws, Wolff's article is still regarded as authoritative in recent treatments of marriage in Classical Athens. See, for example, Just R., Women in Athenian Law and Life (London, 1989), pp. 73, 284 n. 8. The entire topic demands a fresh study.
61 For the dike proikos, see Ath. Pol. 52.2 with Rhodes P. J., A Commentary on the Aristotelian Athenaion Politeia (Oxford, 1981), p. 584. I doubt this action could be used by the husband to force payment of part of a dowry promised to him, but not paid. As our analysis of Dem. 41.6–10 revealed, an outstanding amount of dowry was considered a debt and was thus subject to the laws concerning the repayment of loans.
62 These horoi cannot have been put up on property pledged as security for the payment of dowry by a woman's relatives and are thus not comparable to the horoi set up by Polyeuctus (Dem. 41.6). In that case, the property was pledged to the husband, but on horoi nos. 49 and 82 we find the names of women just as on the other horoi set up to secure the return of a dowry. Hows 21A is fragmentary, but Fine's restoration, which gives the names of a woman and her kyrios, is highly probable.Horos no. 93 is restored by Kirchner in IG ii2 2683 to give a similar formula, but there are too few letters legible to guarantee certainty. The discussion of these horoi by Finley, p. 51 is too brief and vague to be helpful; the criticism made by Finley, pp. 244 n. 59 in regard to Kirchner's classification of IG ii2 2681–3 is off the mark.
63 Harrison (n. 15, above), pp. 52–4, gives a short summary of the debate about the ownership of the dowry, but does not see the legal issue involved.
64 Bekker , Anecdota Graeca, 250: ⋯νεπ⋯σκημμα κα⋯ ⋯νεπισκήψασθαι προϕώνησις γυναικ⋯ς κα⋯ δανειστο⋯, δημενομ⋯νης οὐσ⋯ας, περ⋯ προικ⋯ς κα⋯ χρ⋯ους, ⋯ϕε⋯λοντων αὐτ⋯ ⋯ξ αὐτ⋯ς λαμβ⋯νειν. The information presented in this passage is confirmed by the publication of a fragment of the poletai records for 367/366 (Hesperia 10 (1941), 14).
66 Harris, pp. 362–76.
66 The legal knowledge of the average member of the Athenian court should not be underestimated. See Harris E. M., ‘Response to Trevor Saunders’, Symposion 1990 (Cologne, Weimar, and Vienna, 1991), 134–6.
67 Previous attempts to interpret the law, such as those of Finley, pp. 52, 245 n. 61 and 62, and of Wolff, pp. 330–1, are based on erroneous views of ⋯ποτ⋯μημα For references to earlier treatments, see Wolff, pp. 330–1. My own view is closest to that of Pappulias D. P., Ή ⋯μπρ⋯γματος ⋯σϕ⋯λεια κατ⋯ τ⋯ ⋯λληνικ⋯ν κα⋯ τ⋯ ῥωμαἲκ⋯ν ν⋯μον (Leipzig, 1909), pp. 159–60, though his view of apotimema differs from mine, and he makes no attempt to place the law in the context of other Athenian laws about protecting ownership.
68 This was arbitrarily denied by Finley, p. 245 n. 61. The verb ἔχειν is used at [Dem.] 7.26 to denote possession in contrast to ownership. Many other passages show the word used in the same sense. See, for example, Dem. 24.13; [Dem.] 52.32; Is. 10.24.
69 For the generalizing plural, see Bers V.. Greek Poetic Syntax in the Classical Age (New Haven, 1984), pp. 24–7. For a comparable shift from singular to plural in a general statement, see X. Hi. 5.4. Cf. Smyth (n. 42, above), p. 271.
70 The word διακωλὑει at Dem. 41.5 is a conative present - see Smyth (n. 42, above), p. 421. The verb refers to Spudias' suit, which was aimed in part at challenging the speaker's right to the property. It cannot refer to a physical attempt by Spudias to bar the speaker from entering the property, since the property was clearly occupied by those who were paying rent. It is also wrong to interpret this ‘lease’ as a secured loan and to view the payment of rent as interest payments. There is no evidence from the speech that Polyeuctus ever agreed to pay the speaker interest on the unpaid portion of the dowry.
71 For the correct interpretation of the passage, see Wyse (n. 29, above), pp. 668–9, who cited the relevant passages from Harpocration and Photius. Finley, pp. 232–3 n. 51, arbitrarily rejects Wyse's interpretation.
72 For the procedure, see Wyse, p. 436.
73 For the paragraphe procedure, see Wolff H. J., Die attische Paragraphe (Weimar, 1966).
74 See n. 66.
I would like to thank Dr Paul Millett for reading over an earlier draft of this article and offering several good suggestions for improvement. He is not to be held responsible for any remaining errors or for the length of Part I.
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