If you see Sign in through society site in the sign in pane within a journal: If you do not have a society account or have forgotten your username or password, please contact your society. Therefore the agent must account to the trust for any profit made out of the position. Land law - Introduction to land law with description of its history, Introduction to Sports Massage and Soft Tissue Practices, Legal and Professional Aspects of Optometry (BIOL30231), Access to Health Professionals (4000773X), Business Data Analysis (BSS002-6/Ltn/SEM1), Introductory Chemistry (0FHH0023-0901-2018), Introduction toLegal Theory andJurisprudence, Introduction to English Language (EN1023), Cell Membranes - Lecture notes, lectures 1 - 24. Boardman felt that by asset-stripping the company he could increase the value of the shares. The solicitor to a family trust (S) and one Beneficiary (B)-there were several-went to the board meeting of a company in which the trust owned shares. It is not contended that the trustees had such knowledge or gave such consent. p. 117D G, The relevant rule for the decision of this case is the fundamental rule of equity that a person in a fiduciary capacity must not make a profit out of his trust which is part of the wider rule that a trustee must not place himself in a position where his duty and his interest may conflict.: p. 123C, Whether there is a possibility of conflict depends on whether the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict: p. 124B, Note that in this case, not only did the principals, which are the trust beneficiaries, no lose anything, but they actually profited from the increase in value of shares held under the trust as a result of the actions of defendants thus it can be surmised that regardless of whether any wrongdoing or harm was caused to the principal, the fiduciary is liable for all profits acquired as a result of his position. <>>> Lords Cohen, Guest and Hodson held that there was a possibility of a conflict of interest because the beneficiaries might have come to Boardman for advice as to the purchases of the shares. Boardman and Tom Phipps had breached their duties to avoid a conflict of interest. Lord Denning MR, Russell LJ and Pearson LJ upheld Wilberforce J's decision and held that Boardman and Phipps had breached his duty of loyalty, which arose as they had become self-appointed agents representing the trust, by putting themselves in a conflict of interest. Name of Case. S;70[`J)LQ,ecX_LK,*q3>~ B=eA* It concludes that the conduct-based approach in Boardman v Phipps should be rejected, and that the unjust enrichment-based approach provided by Warman International Ltd v Dwyer should be In 1996 Mr Clarke settled 150,000 on trust to benefit various family members including his grandchildren, Brooke and Billy. Unit 11. His lordship, with respect . WI[y*UBNJ5U,`5B1F :IK6dtdj::yj His statement has . endobj Boardman appealed against a finding that he was a constructive trustee for, or agent did not necessarily render him accountable for profit from its use, yet in, the present case, as both the information which satisfied B and P, purchase of the shares would be a good investment and the opportunity to bid, came as a result of B acting on behalf of the trustees B and P, trustees of five eighteenths of the shares in the company for the respondent and, were liable to account to him for the profit thereon accordingly, Human Rights Law Directions (Howard Davis), Tort Law Directions (Vera Bermingham; Carol Brennan), Marketing Metrics (Phillip E. Pfeifer; David J. Reibstein; Paul W. Farris; Neil T. Bendle), Public law (Mark Elliot and Robert Thomas), Commercial Law (Eric Baskind; Greg Osborne; Lee Roach), Introductory Econometrics for Finance (Chris Brooks), Criminal Law (Robert Wilson; Peter Wolstenholme Young), Principles of Anatomy and Physiology (Gerard J. Tortora; Bryan H. Derrickson), Electric Machinery Fundamentals (Chapman Stephen J. Final, Pharmaceutical Calculations practice exam 1 worked answers, Acoples-storz - info de acoples storz usados en la industria agropecuaria. A personal account can be used to get email alerts, save searches, purchase content, and activate subscriptions. Administrative Law. endobj The only defence available to a person in such a fiduciary position is that he made the profits with the knowledge and assent of the trustees. Boardman v Phipps. Rix LJ in Foster v Bryant4 was similarly equivocal to Arden LJ about the inflexibility of the test in Boardman v Phipps. ", The phrase "possibly may conflict" requires consideration. [1] The trust assets include a 27% holding in a company (a textile company with factories in Coventry, Nuneaton and in Australia through a subsidiary). Proprietary relief in Boardman v Phipps 3 the trustees, although Ethel, who suffered from senile dementia, took no active role in the trust affairs at the material time. Read more about this topic: Boardman V Phipps, Judgment, A severe though not unfriendly critic of our institutions said that the cure for admiring the House of Lords was to go and look at it.Walter Bagehot (18261877), The welcome house of him my dearest guest.Where ever, ever stay, and go not thence,Till natures sad decree shall call thee hence;Flesh of thy flesh, bone of thy bone,I here, thou there, yet both but one.Anne Bradstreet (c. 16121672), You see how this House of Commons has begun to verify all the ill prophecies that were made of itlow, vulgar, meddling with everything, assuming universal competency, and flattering every base passionand sneering at everything noble refined and truly national. O(Grx+Q_[%Dm%|(Dy m%Cn(Dy(o%~(Jg(Q[tJD|(R(GIAK(xRph1%Z'-Y!bO-FDY b<9hHJO-F?!b<98HO-F!b-f b. Is it a conflict? If you cannot sign in, please contact your librarian. Recent cases including Bhullar v Bhullar are discussed to illustrate the present approach of the courts to the recurring issues surrounding possible applications of the no-conflict rule. Oxbridge Notes is operated by Kinsella Digital Services UG. Constructive trusts, unjust enrichment, tracing 2010 Cases, Written by Oxford & Cambridge prize-winning graduates, Includes copious academic commentary in summary form, Concise structure relating cases and statutes into an easy-to-remember whole. However the court exercised its inherent jurisdiction to make a monetary award to S for his services to improving the value of the trust. . The company made a distribution of capital without reducing the values of the shares. Study with Quizlet and memorize flashcards containing terms like Intro, Intro for fiduciaries, Boardman v Phipps (1967) and more. Following successful sign in, you will be returned to Oxford Academic. All rights reserved. His The trust property included a substantial shareholding in a private company. Lord Hodson and Lord Guest: Since S and B had used information made available to them by virtue of their relationship to the trust (as solicitor and beneficiary respectively), and since the information was trust property, they had made a profit out of trust property, rendering them liable. 2010-2023 Oxbridge Notes. Judgement for the case Boardman v Phipps The solicitor to a family trust (S) and one Beneficiary (B)-there were several-went to the board meeting of a company in which the trust owned shares. T he appellant B was a solicitor who acted as an advisor to the trustees. ), Rang & Dale's Pharmacology (Humphrey P. Rang; James M. Ritter; Rod J. Ought Boardman and Tom Phipps to be allowed remuneration for their work and skill in these negotiations? The institutional subscription may not cover the content that you are trying to access. The full text is available here: http://www.bailii.org/uk/cases/UKHL/1966/2.html, -- Download Boardman v Phipps [1967] 2 AC 46 as PDF --, Transvaal Lands Co v New Belgium (Transvaal) Lands & Development CO [1914] 2 Ch 488, http://www.bailii.org/uk/cases/UKHL/1966/2.html, Download Boardman v Phipps [1967] 2 AC 46 as PDF. This article explores how the dissenting judgment of Lord Upjohn in Boardman v Phipps has been preferred by the lower courts and why the courts have adopted such a position. strict liability of fiduciaries has been the subject of criticism on the grounds that it is unfair to penalise honest trustees in the same way as guilty trustees and that the strict rule may discourage people from accepting the post. Lord Cohen said the information is not truly property and it does not necessarily follow that, because an agent acquired information and opportunity while acting in a fiduciary capacity, he is accountable. Wilberforce J held that Boardman was liable to pay for his breach of the duty of loyalty by not accounting to the company for that amount of money, but that he could be paid for his services. Do not use an Oxford Academic personal account. If the agent has been guilty of any dishonesty or bad faith, or surreptitious dealing, he might not be allowed any remuneration or reward. "And it is a rule of universal application, that no one, having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 17 0 R 22 0 R 23 0 R 25 0 R 35 0 R 36 0 R 40 0 R 42 0 R] /MediaBox[ 0 0 594.96 842.04] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> endobj Cambridge University Press (www.cambridge.org) is the publishing division of the University of Cambridge, one of the worlds leading research institutions and winner of 81 Nobel Prizes. my lords. It depends on the circumstances. A breach of a fiduciary duty is of strict liability, regardless of their intention Boardman v Phipps 1967 1. 3 0 obj Boardman and Phipps would have to account for their profits, despite the fact they had best intentions and made the Lexter & Harris a profit. Boardman v Phipps [1967] 2 AC 46, [1966] 3 WL R 1009, [1966] 3 All ER 721. "It is perhaps stated most highly against trustees or directors in the celebrated speech of Lord Cranworth L.C. The Trustee (T) refused to let them invest on behalf of the trust. Boardman v Phipps answers this question: in the affirmative. endobj This decision was followed and applied in Boardman v Phipps. Click the account icon in the top right to: Oxford Academic is home to a wide variety of products. But they did not obtain the fully informed consent of all the beneficiaries. Q6 - You now need to carry out research about the different universities/colleges you are interested in applying to by finding the answers to the areas you have outlined in your responses to questions 3 and 5 above. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide, This PDF is available to Subscribers Only. in. They realised together that they could turn the company around. 2.I or your money backCheck out our premium contract notes! F5aE}*?fxl1oA+;{ S>"~qOf~AcW|g[ VFaxb'o Tns34}#rPDB The House of Lords maintained the strict rule that historically equity has imposed on a fiduciary. 39^40. (eg- acting for multiple people) a. You do not currently have access to this article. Society member access to a journal is achieved in one of the following ways: Many societies offer single sign-on between the society website and Oxford Academic. &Thb;ynxP\ -|tLo9sRx[8-a5& 'vd `f@). Sealy, Commercial Law and Commercial Reality (London 1984), pp. The proceedings. This is because there is no possibility the trustee would seek Boardman's advice to purchase the shares and at any rate Boardman could have declined to act if given such request. Copyright 2023 StudeerSnel B.V., Keizersgracht 424, 1016 GC Amsterdam, KVK: 56829787, BTW: NL852321363B01, co-appellant was another son of the testator, described as constructive trustees by virtue of a fiduciary relationship to the, B decided along with one of the trustees that the company was not doing well. He also obtained detailed trading accounts of the English and Australian arms of the business. Lord Cohen said the information is not truly property and it does not necessarily follow that, because an agent acquired information and opportunity while acting in a fiduciary capacity, he is accountable. The articles and case notes are designed to have the widest appeal to those interested in the law - whether as practitioners, students, teachers, judges or administrators - and to provide an opportunity for them to keep abreast of new ideas and the progress of legal reform. trust. Boardman v Phipps [1967] 2 AC 46. The majority agreed unanimously that liability to account for the profits made by virtue of a fiduciary relationship is strict and does not depend on fraud or absence of bona fides, and so Phipps and Boardman would have to account for their profits. Citation and Court [1967] 2 AC 46. Published by Oxford University Press. Boardman v Phipps [1967] Where an individual is in the position of agent for trustees, any knowledge acquired in such a position is trust property. Material Facts Boardman was the solicitor for a family trust. House of Lords. They realised together that they could turn the company around. Boardman and Phipps did not obtain the fully informed consent of all the beneficiaries. ", The phrase "possibly may conflict" requires consideration. Boardman had concerns about the state of Lexter & Harris' accounts and thought that, in order to protect the trust, a majority shareholding was required. Therefore S and B invested themselves and the company did very well, improving the value of the shares held by themselves individually and by the trust. The strict liability of fiduciaries has been the subject of criticism on the grounds that <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 17 0 R 22 0 R 23 0 R 25 0 R 35 0 R 36 0 R 40 0 R 42 0 R] /MediaBox[ 0 0 594.96 842.04] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> View the institutional accounts that are providing access. Boardman v Phipps is a leading authority on the no-conflict rule. 4 0 obj Boardman v Phipps [1966] UKHL 2 is a landmark English trusts law case concerning the duty of loyalty and the duty to avoid conflicts of interest. The trust benefited by this distribution 47,000, while Boardman and Phipps made 75,000. Another beneficiary (P) claimed conflict of interest and demanded her share of the profit, because of S fiduciary role. When on the institution site, please use the credentials provided by your institution. &Thb;ynxP\ -|tLo9sRx[8-a5& 'vd `f@). They bought a majority stake. privacy policy. They suggested to a trustee (Mr Fox) that it would be desirable to acquire a majority shareholding, but Fox said it was completely out of the question for the trustees to do so. In April 1997, Mrs Newman and her husband granted a lease of 1 Vicarage . Part II describes the rationales for adopting each of the approaches to awarding allowances to dishonest fiduciaries. Coke v Fountaine (1676) Mike Macnair; 3. S+QMS^ kUeH|8H4W,G*3R]wHgMY&,*Hu`IcFWB S;70[`J)LQ,ecX_LK,*q3>~ B=eA* BOARDMAN and Another v. PHIPPS Viscount Dilhorne Lord Cohen Lord Hodson Lord Guest Lord Upjohn. Special emphasis is placed on contemporary developments, but the journal's range includes jurisprudence and legal history. CASE BRIEF TEMPLATE. They wanted to invest and improve the company. But then John Phipps, another beneficiary, sued for their profits, alleging a conflict of interest. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. They owed fiduciary duties (to avoid any possibility of a conflict of interest) because they were negotiating over use of the trust's shares. Select your institution from the list provided, which will take you to your institution's website to sign in. Issues Did Boardman and Tom Phipps breach their duty to avoid a conflict of interest, despite the fact that the company made a profit and . Boardman and Tom Phipps, a beneficiary of the trust, attended a general meeting of the company. 31334. See below. Nicholas Collins, The no-conflict rule: the acceptance of traditional equitable values?, Trusts & Trustees, Volume 14, Issue 4, May 2008, Pages 213224, https://doi.org/10.1093/tandt/ttn009. He said unequivocally that knowledge learnt by a trustee in the course of his duties is not property of the trust and may be used for his own benefit unless it is confidential information which is given to him (i) in circumstances which, regardless of his position as a trustee, would make it a breach of confidence to communicate it to anyone or (ii) in a fiduciary capacity. 2 0 obj fiduciary he was accountable to the beneficiaries for any profit he had made. His liability to account depends on the facts. able to bring it back to profit, and the trust fund benefited. in Aberdeen Railway v. Blaikie, 136 where he said: "And it is a rule of universal application, that no one, having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect. For terms and use, please refer to our Terms and Conditions Oxbridge Notes in-house law team. Flower; Graeme Henderson). . stream With the full knowledge of the trustees, Boardman and Phipps purchased a majority stake of the shares themselves. View your signed in personal account and access account management features. Annetts v McCann (1990) 170 CLR 596. Boardman v Phipps seems like a more onerous application of rule against an unauthorised profit than that in Regal Hastings, all that is apparently required for a fiduciary to be liable is that ' a reasonable man looking at the relevant facts would think there was a real possibility of . They owed fiduciary duties (to avoid any possibility of a conflict of interest) because they were negotiating over use of the trusts shares. He attended the annual general meeting of Lester &amp; Harris Ltd, a company in which the trust had a substantial shareholding. Do not use an Oxford Academic personal account. % If you believe you should have access to that content, please contact your librarian. Lord Upjohn dissented, and held that Phipps and Boardman should not be liable because a reasonable man would not have thought there was any real sensible possibility of a conflict of interest. Part II describes the rationales for adopting each of the approaches to awarding allowances to dishonest fiduciaries. The majority disagreed about the nature and relevance of information used by Boardman and Phipps. Boardman had concerns about the state of Lexter & Harris accounts and thought that, in order to protect the trust, a majority shareholding was required. This is because there is no possibility the trustee would seek Boardman's advice to purchase the shares and at any rate Boardman could have declined to act if given such request. students are currently browsing our notes. Boardman v Phipps is a leading authority on the no-conflict rule. For more information, visit http://journals.cambridge.org. On the 1st March, 1962, the Respondent John Anthony Phipps com- menced an action against his younger brother, Thomas Edward Phipps and Mr. T. G. Boardman, a solicitor and partner in the firm of Messrs. Phipps & . endobj However they were generously remunerated for their services to the trust. However, they were generously remunerated for their services to the trust. . Boardman was a solicitor to trustees of a will trust. xksgD2u$N+xH)%"dU &c~m_WMnny|t80^olIv"+E] mv}f"gv UY Fe_go_eu6[xGLBdUS-?b\4?s=}GO0upAQ![*`E"~ The beneficiary principle in the 21st century, Subscription prices and ordering for this journal, Purchasing options for books and journals across Oxford Academic, Receive exclusive offers and updates from Oxford Academic. Throughout this phase Proprietary relief in Boardman v Phipps 6 [1967] 2 AC 46 (HL) 73. The other two members of the majority, Lord Hodson and Lord Guest, opined that information can constitute property in appropriate circumstances and in the current case, the confidential information acquired can be properly regarded as property of the trust. Chase Manhattan Bank v Israel-British Bank Ltd, Industrial Development Consultants v Cooley, https://en.wikipedia.org/w/index.php?title=Boardman_v_Phipps&oldid=1123060721, Creative Commons Attribution-ShareAlike License 3.0, [1965] Ch 992, [1965] 2 WLR 839 and [1964] 1 WLR 993, Viscount Dilhorne, Lord Cohen, Lord Hodson, Lord Guest and Lord Upjohn, This page was last edited on 21 November 2022, at 15:30. Pettitt v Pettitt (1970) and Gissing v Gissing (1971) John Mee; 22. enough, and that am attempt to take control of the company should be initiated. The residuary estate included 8000 shares in J.ester & Harris Ltd., an underperforming private company with issued share capital of 3l),000 1 ordinary shares. Current issues of the journal are available at http://www.journals.cambridge.org/clj. A fiduciary agent has to account to for any profits acquired by reason of the his fiduciary position and the opportunity or knowledge resulting from it, even if the principals could not have made the . He (and a beneficiary) purchased shares in a company in which the trust already had a substantial holding. I think there should be a generous remuneration allowed to the agents. However, they would be able to retain a generous remuneration for the services he performed. He and a beneficiary, Tom Phipps, went to a shareholders' general meeting of the company. %PDF-1.5 our website you agree to our privacy policy and terms. The problem was that the trust instrument itself did not allow the investment of, Boardman purporting to act on behalf of the trust (relationship of agenc, discovered the likely cost of the shares and purchased the shares in his own, At all points, Boardman had acted honestly, After Boardman had purchased the controlling interest in the company. By using BOARDMAN v PHIPPS. A testator le ft 8000 shares (a minority share holding) of a private company in . The majority of the House of Lords (Lords Cohen, Guest and Hodson) held that there was a possibility of a conflict of interest, because the solicitor and beneficiary might have come to Boardman for advice as to the purchases of the shares. T he respondent, JP, was a son of the testator and a beneficiary under the . law since Boardman v Phipps. However, to do this he needed a majority shareholding in the company. WI[y*UBNJ5U,`5B1F :IK6dtdj::yj He said unequivocally that knowledge learnt by a trustee in the course of his duties is not property of the trust and may be used for his own benefit unless it is confidential information which is given to him (i) in circumstances which, regardless of his position as a trustee, would make it a breach of confidence to communicate it to anyone or (ii) in a fiduciary capacity. Cambridge University Press is committed by its charter to disseminate knowledge as widely as possible across the globe. Priority of trustees indemnity inter se: pari passu or first in time priority? His Lordship distinguished Regal (Hastings) v Gulliver by restricting Regal Hastings to circumstances concerned with property of which the principals were contemplating a purchase. To purchase short-term access, please sign in to your personal account above. The trustees were informed of these intentions. 1 0 obj In my view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict; not that you could imagine some situation arising which might, in some conceivable possibility in events not contemplated as real sensible possibilities by any reasonable person, result in a conflict.". Lord Upjohn also agreed with Lord Cohen that information is not property at all, although equity will restrain its transmission if it has been acquired by a breach of confidence. This species of action is an action for restitution such as Lord Wright described in the Fibrosa case. Lord Upjohn dissented, and held that Phipps and Boardman should not be liable because a reasonable man would not have thought there was any real sensible possibility of a conflict of interest. Boardman, the By capitalizing some of the assets, the company made a distribution of capital without reducing the values of the shares. Tom Boardman was a solicitor for a family trust. Lecture notes, lectures 1-10 - Financial Maths for Actuarial Science, Lecture Notes - Psychology: Counseling Psychology Notes (Lecture 1), The effect of s78 Police and Criminal Evidence Act 1984 Essay, Critical Reflection on my Work Experience, 2019 MCQ 1 answers - Online Multiple Choice Questions, Caso Walmart vs Kmart - RESUMEN DEL TEMA DE LOGISTICA DE OPERACIONES - DSM-5, Syllabus in Social Science and Philosophy, ACCA FINANCIAL MANAGEMENT Pocket Notes 2021 22, Mischief Rule, Examples, Advantages, Disadvantages and rectification, Human Muscular Skeletal Systems. Whether or not the trust or the beneficiaries in their stead could have taken advantage of the information is immaterial: p. 111A, The question whether or not there was a fiduciary relationship at the relevant time must be a question of law and the question of conflict of interest directly emerges from the facts pleaded, otherwise no question of entitlement to a profit would fall to be considered. The Appellant Phipps was Chairman of this company and Mr. Boardman was one of its directors. The majority unanimously agreed that liability to account for the profits due to a fiduciary relationship is strict; it does not depend on fraud or an absence of bona fides. Therefore, Boardman was speculating with trust property and should be liable. They suggested to Mr Fox, a trustee, that it would be desirable to acquire a majority shareholding, but Fox disagreed. The plaintiff is ready to concede it, but in case the other beneficiaries are interested in the account, I think we should determine it on principle. It concludes that the conduct-based approach in Boardman v Phipps should be rejected, and that the unjust enrichment-based approach provided by Warman International Ltd v Dwyer should be They wanted to invest and improve the company. endobj Lord Upjohn was in dissent in Boardman v. Phipps, but his dissent was "on the facts but not on the law": Queensland Mines Ltd. v. Hudson (1978) 52 A.L.J.R. This item is part of a JSTOR Collection. 399, 400 (PC). Boardman v Phipps (1967) was an example of the application of strict liability. This is a Premium document. The trust assets include a 27% holding in a textile company called Lexter & Harris. The Trustee (T) refused to let them invest on behalf of the trust. 1 0 obj His Lordship regarded Boardman to be liable because he acquired the information in the course of the fiduciary relationship and because of the fiduciary relationship. However, the circumstances were quite different to those in Boardman v Phipps. Lord Upjohn also agreed with Lord Cohen that information is not property at all, although equity will restrain its transmission if it has been acquired by a breach of confidence. If the defendant has done valuable work in making the profit, then the court in its discretion may allow him a recompense. In the present case, as the purchase of the shares was entirely out of the question, Regal Hastings was said to be inapplicable. The trustees were prevented from purchasing any further shares as they were not authorised investments under the terms of . If your institution is not listed or you cannot sign in to your institutions website, please contact your librarian or administrator. Penn v Lord Baltimore (1750) Paul Mitchell . The case for tracing forward not backward through an overdraft. His Lordship distinguished Regal (Hastings) v Gulliver by restricting Regal Hastings to circumstances concerned with property of which the principals were contemplating a purchase. Shibboleth / Open Athens technology is used to provide single sign-on between your institutions website and Oxford Academic. Register, Oxford University Press is a department of the University of Oxford. <>>> Don't already have a personal account? Grey v Grey (1677) Jamie Glister; 4. This authentication occurs automatically, and it is not possible to sign out of an IP authenticated account. Boardman v Phipps (1967) Michael Bryan; 21. The majority agreed unanimously that liability to account for the profits made by virtue of a fiduciary relationship is strict and does not depend on fraud or absence of bona fides, and so Phipps and Boardman would have to account for their profits. The trust assets include a 27% holding in a textile company called Lexter & Harris.

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