Brazilian courts use several methods to identify the asset position of another party. Below are some examples of the methods typically employed by the courts.
The information obtained through these tools is typically made available within the lawsuit records, whose contents are publicly available to third parties, except when courts use the InfoJud tool, as it provides debtor’s sensitive information (when the records are sealed and can be accessed only by the parties to the proceeding).
Except for Board of Trade and real estate property information, none of the information that is produced with the tools above are available to the public. The creditor can request the real estate registry to search for a debtor’s name in its archives. It is also possible to obtain public information if a debtor is facing another lawsuit or is a creditor in other proceedings (as seen in 2.7 Register of Domestic Judgments).
The Brazilian Civil Procedure Code (BCPC) provides for a variety of domestic judgments:
Finally, the BCPC provides for an atypical judgment in monition actions (ação monitória), whereby a court may order the immediate enforcement of a certain debt whenever the defendant fails to provide its defence or pay its debt after the plaintiff’s production of a set of evidence that indicates a probable debt.
As detailed in the BCPC, if the debtor fails to pay the debt in due time (ie, within 15 workdays, as established by law) or disclose its assets voluntarily, the creditor can search the location of assets through the measures listed in 1.1 Options to Identify Another Party’s Asset Position and request the attachments of goods/assets through the following means.
These enforcement measures ensure that judgment creditors have effective means to recover debts from judgment debtors who fail to voluntarily satisfy court judgments. Each measure involves specific legal procedures to protect the rights of both the creditor and the debtor while ensuring compliance with the law.
Typical costs involved in the enforcement of a judgment vary greatly on a case-by-case basis and depend on the state or federal court in which the enforcement action is brought.
In addition to attorney’s fees to file the action, a party enforcing a judgment will need to pay for court fees, which vary depending on the amount in dispute and in which Brazilian state the court is located. Usually, “high-demand” courts, such as the São Paulo or the Rio de Janeiro state courts, are not too expensive, as opposed to remote courts. São Paulo courts, for instance, charge amounts equal to 1% of the amount involved in the dispute. Rio de Janeiro collects 2% of the involved amount. The reimbursement of court fees can be claimed from the debtor as part of the enforcement procedures.
Further, if enforcement requires asset constraint and attachments, the party seeking enforcement will have to pay each time it requests the judge to issue an order to locate assets, as seen in 1.1 Options to Identify Another Party’s Asset Position. Albeit individual orders are not expensive, a lengthy enforcement proceeding with multiple orders can become costly.
In fact, enforcement proceedings can take much longer than the main proceeding in which the judgment was rendered. Current estimates are of three to four years. This is due to the difficulties in locating and swiftly seizing assets from defendants, who usually employ dilatory tactics to hide assets, such as transferring the assets to another person or entity, or by keeping savings overseas. The most efficient form to circumvent this difficulty is by using all available tools to locate assets, as seen in 1.1 Options to Identify Another Party’s Asset Position.
There are no specific post-judgment procedures for determining what assets the defendant owns and where they are located. Such investigation is made by the creditor within the enforcement proceeding phase with the court that rendered the award. To locate the debtor’s assets in the enforcement proceedings, a party may request the judge to issue orders to the Brazilian Central Bank, Real Estate Registry Systems, Federal Revenue Service etc, as seen in 1.1 Options to Identify Another Party’s Asset Position.
Once an award is rendered by the court, the defendant has a narrow set of ways to challenge an enforcement. These are the following.
If one year has elapsed without the debtor being located or attachable assets being found, the judge will order the case file to be archived.
There are no unenforceable domestic judgments by nature in Brazilian law. However, an enforceable judgment can become unenforceable for a variety of reasons. For instance, if a revision court modifies or annuls a judgment, that judgment can no longer be enforced on its original terms. In other circumstances, a party can file a motion to suspend or dismiss the enforcement proceeding of a judgment. If such motion is granted, the enforceable award will become temporarily (suspension) or definitely (dismissal) unenforceable.
There is no central register of all judgments. However, all Brazilian state and federal courts hold records of all ongoing and concluded public legal processes. It is possible to search for entities or an individual’s name before any Brazilian court and the court will issue a certificate of all ongoing or concluded legal processes in which that entity or individual was or is a plaintiff or a defendant, provided that the legal proceeding is public (which is the standard in Brazil).
Usually, this certificate contains (i) the name of the searched entity or individual; (ii) the court number of the legal process; and (iii) the date on which the legal process commenced. Issuing certificates is common practice when conducting a due diligence, for instance.
Moreover, all courts in Brazil provide access to lawsuits through their respective websites. If a lawsuit is electronic, any registered lawyer will be able to access the records of such lawsuit, provided that such process is not under seal.
In Brazil, a judgment debtor who has paid what is owed cannot remove the judgment or the existence of the lawsuit from the court’s records. Upon accessing the lawsuit, one will be able to see whether the process has become res judicata.
On another aspect, if an individual is in debt by not complying with a judgment order, the creditor may request credit companies to publicly mark that individual as a debtor. By doing so, the debtor will face difficulties to raise credit through financial institutions, retain mortgages, insurances and bank guarantees. To lift this mark, the debtor must pay what is owed. Albeit this is not a register of judgments, it is a public register of debts that compels the debtor to comply with the judgment award.
Similarly, if a judge orders the attachment of a property, this attachment will be registered at the relevant Real Estate Public Register. If the debtor pays their debt, they may request the judge to lift the attachment from the public registries.
The Brazilian Superior Court of Justice (Superior Tribunal de Justiça – STJ) is the competent authority for recognising foreign judgments, in accordance with Article 105, I, ‘i’ of the Brazilian Constitution.
Pursuant to Article 961 of the BCPC, a foreign judgment will only have effect in Brazil (and, therefore, will be suitable for enforcement) after recognition by the STJ.
The foreign judgment must meet specific criteria to be recognised and enforced, such as: (i) the judgment must be final; (ii) the court that issued the judgment must have had proper jurisdiction over the case; (iii) the judgment must have been rendered following due process of law, with both parties having been given the opportunity to present their case; (iv) the judgment must not violate Brazilian public policy; and (v) the judgment must be duly authenticated and translated into Portuguese by a sworn translator.
The main treaties relevant for the enforcement of foreign judgments in Brazil are the following.
Brazilian courts maintain a consistent “friendly” approach to the enforcement of different types of foreign judgments (either judicial or arbitral awards). Regardless of the nature of the foreign judgment, all judgments must adhere to the same legal criteria as outlined by the BCPC and the Internal Rules of the STJ. This uniformity ensures that every foreign judgment undergoes a standardised process for recognition and enforcement, which includes meeting the requirements of jurisdictional competence, finality and conclusiveness, due process, and compatibility with Brazilian public policy. The STJ rigorously applies these criteria to ensure that the enforcement of foreign judgments aligns with Brazilian legal principles and procedural standards. Although the scrutiny is rigorous, in very few cases a foreign award is not recognised by the STJ.
The grounds for refusal of foreign judgments are defined if:
There is also a dispute on the possibility of enforcing foreign provisional measures.
The recognition procedure is regulated by Articles 216-A to 216-X of the Internal Rules of the STJ (RISTJ). The requirements for the recognition of a foreign judgment are provided for in Article 963 of the BCPC and Articles 216-C and 216-D of the Internal Rules of the STJ. The analysis of the foreign judgment by the STJ must not address the merits of the case, since STJ adopts the juízo de delibação (the “Deliberative Review”) as an interpretation criteria. The Deliberative Review is a procedural mechanism used by the STJ in Brazil during the recognition of foreign judgments. This review is characterised by its limited scope feature, focusing primarily on formal and procedural aspects rather than the merits of the case. The STJ does not re-examine the factual or legal findings of the foreign court; instead it ensures compliance with specific requirements and principles. The process shall be conducted as follows.
In addition to legal fees for hiring an attorney, the party must pay BRL247,14 in judicial costs (as per Resolution STJ n. 2/2017, updated by Normative Instruction STJ/GP n. 1, from 15 January 2024). According to the Brazilian Ministry of International Affairs, if all procedural documents are included and there is no objection, the average processing time will be two months, which can vary in accordance with the complexity of the case. However, in practice, the process takes at least six months even if the recognition is not challenged by the debtor. If the recognition is challenged by the debtor, then the process will take approximately 12 to 18 months.
The final decision in this process will be a ruling, either approving or rejecting the foreign judgment. If approved, the attorney must proceed with its enforcement, which involves issuing the Letter of Judgment. The creditor will be informed of the availability of the Letter of Judgment and the amount to be paid.
Afterwards, under Article 965 of BCPC, the creditor must enforce the award before federal courts of first degree. In this moment, the recognised award is considered to be an enforcement title, as set forth by Articles 771 to 782 of BCPC. Therefore, it must follow BCPC rules concerning enforcement, as a new lawsuit will be triggered to enforce the credit against the debtor. The time and cost of this new procedure will follow that stated in 2.3 Costs and Time Taken to Enforce Domestic Judgments and 2.4 Post-judgment Procedures for Determining Defendants’ Assets.
Challenging the enforcement of a foreign judgment in Brazil involves various legal options and grounds. The following are the primary ways in which enforcement can be challenged:
A notorious Brazilian case concerning the enforcement of foreign judgments – a foreign arbitral award, more specifically – and breach of public policy is the Abengoa v Ometto Case.
In 2009, Abengoa filed for arbitrations before the ICC in New York. After Abengoa had won a favourable award against Ometto, it sought to enforce it in Brazil and, thus, filed for the recognition of the foreign arbitral award before the STJ following the procedure described in 3.4 Process of Enforcing Foreign Judgments. In response, Ometto challenged the recognition of the foreign arbitral award on the grounds that the presiding arbitrator had not been impartial during the conduct of the arbitration. In fact, the presiding arbitrator was a partner at a global firm who represented companies from the same group of companies of one of the parties in the arbitration. This fact had not been disclosed during the arbitration.
When assessing the case, the STJ ruled that the presiding arbitrator had not acted impartially by failing to disclose that his firm had interest in one of the parties and, thus, denied recognition of the foreign arbitral award on the grounds that the award violated Brazilian public policy. This is because it is Brazilian public policy to ensure due process, which entails an impartial judge. In this sense, the STJ found that the foreign arbitral award violated a fundamental principle of Brazilian law.
Pursuant to Article 31 of the Brazilian Arbitration Act, domestic arbitral awards are equivalent in legal effect to any judgment rendered by a judge, and, consequently, can be enforced before any state court of the seat of arbitration accordingly.
In this sense, all measures available to the enforcement of judgments, such as the ones mentioned in 1.1 Options to Identify Another Party’s Asset Position, are also available for the enforcement of arbitral awards. The same holds true for the options to challenge a domestic arbitral award, as highlighted in 2.5 Challenging Environment of Domestic Judgments.
The enforcement of a domestic arbitral award is contingent upon the fulfilment of the requirements set out by Article 26 of the Brazilian Arbitration Act. That is, the arbitral award must contain (i) a report of the proceedings; (ii) the legal grounds and reasoning of the decision; (iii) the reliefs being granted; (iv) the date and seat where it was rendered; and (v) the signature of all arbitrators. Moreover, the arbitral award cannot be null, pursuant to Article 32 of the same Act. See 3. Foreign Judgments for detail on the enforcement of foreign arbitral awards.
Brazilian courts do not vary their approach to the enforcement of different types of arbitral awards. However, while domestic arbitral awards can be enforced before any judge of the seat of arbitration, foreign arbitral awards must be first recognised by the STJ before being enforced before first instance federal judges, as seen in 3. Foreign Judgments.
A domestic arbitral award will not be enforced if it fails to meet the requirements set out by Article 26 of the Brazilian Arbitration Act (see 4.1 Legal Issues Concerning Enforcement of Arbitral Awards), or if the arbitral award is null and void, pursuant to the criteria of Article 32 of the Brazilian Arbitration Act.
An arbitral award will be considered null and void if:
Scholars also understand that a domestic arbitral award may be considered null and void if it is against public policy. Public policy is a broad term and due to this feature, it is frequently used as grounds over which an action to set aside an arbitral award is brought. In Brazil, there is no immutable concept of public policy. In general, an arbitral award which breaches due process and equality of arms is an award that violates public policy, as it would go against the Brazilian Federal Constitution.
That is, violation of public policy means violation of fundamental principles in Brazil. More than due process and equality of arms, other fundamental principles are free enterprise, dignity, healthcare, party autonomy, and so on.
For the non-enforcement of foreign arbitral awards, see 3.6 Challenging Environment of Foreign Judgments.
Enforcing a domestic arbitral award in Brazil takes roughly the same steps as enforcing any judgment rendered by a judge. In this sense, a party seeking enforcement of a domestic arbitral award will have to:
There is no need to seek the recognition of a domestic arbitral award prior to its enforcement in Brazil. See 3. Foreign Judgments for the enforcement steps for foreign arbitral awards.
Costs and time taken to enforce a domestic arbitral award follow the same rationale for regular state court judgments, pursuant to 2.3 Costs and Time Taken to Enforce Domestic Judgments. For foreign arbitral awards, please refer to 3.5 Costs and Time Taken to Enforce Foreign Judgments.
In Brazil, arbitral awards are final and unappealable. However, a party may challenge the enforcement of a domestic arbitral award pursuant to Article 32 of the Brazilian Arbitration Act, as detailed in 4.3 Categories of Arbitral Awards Not Enforced. This challenge can be made by the party resisting enforcement upon being served process by the party seeking enforcement.
Further, under the same circumstances of Article 32 highlighted in 4.3 Categories of Arbitral Awards Not Enforced, a party may file an action seeking to set aside a domestic arbitral award. The action to set aside an arbitral award must be brought within 90 calendar days as of the date on which the parties were notified of the arbitral award.
For challenges to foreign arbitral awards, see 3.6 Challenging Environment of Foreign Judgments.
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Introduction
The advent of Law 14.905/24 is an advance in Brazilian mandatory law. This law aims to standardise the application of monetary correction indices and interest in contracts without a combined rate and in several other situations.
This was an important step towards increasing legal security in the country, reducing uncertainty and legal disputes related to monetary updating and late payment interest.
The legislative process that culminated in Law 14.905/24 began with Bill (PL) 6.233/23, from the Executive Branch. The text was approved by the Chamber of Deputies, with Deputy Pedro Paulo (PSD-RJ) as rapporteur.
The matter was then sent to the Senate, where it was processed together with PL 1.086/22, presented by the President of the House, Senator Rodrigo Pacheco (PSD-MG), with a favorable report from Senator Rogerio Carvalho (PT-SE).
In the end, Law 14.905/24, sanctioned by President Luiz Inacio Lula da Silva, was published in the Official Gazette of the Union on 1 July 2024.
According to Law 14.905/24, the legal interest rate to be applied to contracts must be equivalent to the difference between the reference rate of the Special Settlement and Custody System (Selic) and the Broad National Consumer Price Index (IPCA). In other words: Selic minus IPCA.
The method of applying the rate will be defined by the National Monetary Council (CNM). The Central Bank must maintain a legal interest rate calculator on its website.
Before Law 14.905/24, the interest rate used in these cases, according to the words of Article 406 of the Civil Code, should be the same in force for late payment of taxes owed to the National Treasury.
However, courts often differed on the interpretation of this point. In some cases, the Selic rate was applied. In others, the rate of 1% per month.
Therefore, before the enactment of Law 14.905/24, there was significant variability and ambiguity regarding the application of monetary correction and interest rates in Brazil.
Different courts often applied different rates, leading to inconsistent decisions and a lack of predictability and security for parties involved in legal disputes.
The absence of a clear standard created an environment of uncertainty that made conflict resolution difficult and increased the costs associated with litigation.
The need for standardisation became even more evident during the debates and judgments at the Superior Court of Justice (STJ) on the interest rate on civil debts.
This is shown in the context of the judgment of Special Appeal no 1.795.982/SP, which has not yet been concluded, in which the understanding on the incidence of the Selic rate is prevailing by a very slim majority.
The lack of consensus among ministers on the application of the Selic rate – or a fixed rate of 1% per month – reflects the complexity and importance of the topic.
The jurisprudential oscillation
Over the years, the issue of interest and monetary correction has been the subject of extensive analysis and debate, especially in the STJ. The federal legislation standardisation court had difficulties in establishing a guideline on the subject.
In 2002, Statement no 20 of the 19 Civil Law Conference of the Federal Justice Council was prepared in the following terms: “The default interest rate referred to in article 406 is that of article 161, § 1, of the National Tax Code, that is, one per cent a month”.
The STJ rulings tended to support this direction, validating the default interest rate of 1% per month. Among several, the following judgments can be mentioned: Regimental Appeal (AgRg) in Instrumental Appeal (AG) to no 897.119/RS, reported by Min. Sidnei Beneti and Regimental Appeal (AgRg) in Instrumental Appeal (AG) to no 791.802/RJ, reported by Minister Aldir Passarinho Junior.
However, at a later point, the default interest rate referred to in Article 406 of the Civil Code was understood to be the Selic rate.
This understanding was consolidated in judgments under the repetitive appeals system, as in Special Appeal (Resp) 1.102.552/CE, reported by Minister Teori Albino Zavascki (Theme 99), and in Special Resource (Resp) 1.110.547/PE, reported by Minister Castro Meira (Theme 112).
As decided in Repetitive Topics 99 and 112, the Selic rate was adopted as a reference, and could not be combined with other monetary update indices, to avoid double counting.
However, this interpretation was neither unanimous nor peaceful. There was always the possibility of a new majority being formed and changing the jurisprudential direction.
Furthermore, the STJ continued to address these issues in different contexts, including the application of interest in loan contracts and the capitalisation of interest. In Theme 953 it was established that the charging of capitalised interest in loan contracts is permitted when there is an express agreement.
The committee of jurists in charge of preparing a draft reform of the civil code
While Law 14.905/24 was debated and approved, a commission of jurists formed in the Senate was also reviewing the Civil Code, preparing a draft reform of it, including discussing the application of interest and debt correction.
The general rapporteur's proposal suggested the application of interest of 1% per month, amending Article 406 of the Civil Code.
The commission's proposal was seen as an attempt to simplify and make rules on interest and monetary correction more predictable.
Some experts consider the definition to be positive, as it would avoid further discussions and divergences, generating clarity and legal certainty.
The rate of 1% per month would provide a fixed and stable index, contrasting with the volatility of the Selic rate, which can be influenced by monetary and economic policies.
However, before the consideration of the proposal to reform the Civil Code, Law 14,905/24 was enacted.
Law 14.905/24
As already noted, Law 14.905/24 establishes that, in the absence of a specific contractual or legal provision, the monetary correction will be based on the Broad National Consumer Price Index (IPCA) or the index that replaces it.
Regarding interest, the Selic rate will be used, deducting the value of the monetary correction. If this subtraction results in a negative value, the interest rate will be zero.
The calculation methodology and method of applying the legal rate will be defined by the National Monetary Council (CMN) and published by the Central Bank.
This standardisation is crucial, as it provides a clear and uniform parameter for the application of monetary correction and late payment interest, thus avoiding divergent interpretations that could result in conflicting judicial decisions and, consequently, legal uncertainty.
The adoption of the IPCA as a monetary correction index ensures that purchasing power is maintained over time, reflecting the real inflation of the period.
The use of the Selic as an interest rate is equally important, as it is a reference widely recognised and used by the financial market.
The clear definition of the indices, therefore, will bring social pacification and foster the business environment, which will have the necessary legal security to plan its long-term operations, envisioning in advance how possible charges will be incurred in case of default.
In addition to standardising monetary correction and interest, the law also applies to late payments of condominium fees and insurance compensation, such as in the case of total loss of an insured vehicle.
These inclusions aim to provide greater uniformity and legal predictability for several common situations in contracts and civil obligations, reducing the scope for legal disputes.
For example, in the case of late payment of condominium fees, the application of monetary correction by the IPCA and interest by the residual Selic rate provides a clear and fair solution, reflecting the inflation of the period and the interest rate in force in the market.
Likewise, in cases of insurance compensation, such as the total loss of a vehicle, the application of the same rates ensures that the compensation is fair and appropriate to the real value of the asset at the time of the accident.
To achieve these results, the law amends several articles of the Civil Code, which previously did not clearly specify the applicable correction indices in the absence of a contractual agreement or specific legal provision.
Among the main changes, the changes in Articles 389, 395, 404, 406, 418, 591, 772 and 1,336 of the Civil Code stand out.
These innovations not only unify the application of inflation adjustment and interest rates, but also clarify debtors' responsibilities in the event of default, ensuring that creditors receive fair and adequate compensation.
Law 14.905/24 also makes Decree 22.626 of 1933, known as the Usury Law, more flexible. This law prohibits the charging of an interest rate higher than twice the legal rate and the charging of compound interest (interest on interest).
With the new legislation, the Usury Law will not be applied to operations contracted between legal entities, facilitating loans between companies outside the financial system.
Currently, the Usury Law no longer applies to financial system transactions, such as bank loans.
This flexibility is important to encourage economic development, allowing companies to negotiate more flexible credit conditions suited to their needs, without the restrictions imposed by the Usury Law.
This can encourage investment and business growth, contributing to the growth of the economy as a whole.
From the perspective of legal security, Law 14.905/24 promotes significant progress. The standardisation of monetary correction and interest rates reduces the variability and uncertainty that previously existed due to the lack of clear parameterisation.
This progress is important in a legal system like Brazil, where disputes over correction indices and interest rates can drag on for years in the courts.
The predictability provided by the new law is fundamental for legal certainty, as it allows parties involved in contracts and disputes to know exactly what the applicable rates will be in the event of default.
Everything contributes to reducing the uncertainty and risk associated with commercial and financial transactions, encouraging the conclusion of contracts and the conduct of business.
The new law, as seen, reflects more recent decisions by the STJ, which, despite the oscillation mentioned above, had been using the Selic as a reference for the correction of civil debts.
It should be noted that Special Appeal 1.795.982, still under trial, seeks to unify the understanding of the legal interest rate.
The trial was interrupted by the request for views from Minister Mauro Campbell Marques, caused by prejudicial questions raised by Minister Luís Felipe Salomão, including the absence of two ministers, clarity regarding the daily capitalisation of the Selic rate, and the initial term of interest.
Despite this, however, there is already a majority formed by maintaining the Selic rate.
This convergence between the new legislation and the STJ's judicial decisions is a positive indication that the judiciary and the legislature are aligned in the search for greater legal clarity and predictability.
This is crucial to strengthening the rule of law and ensuring that judicial decisions are consistent and based on clear and well-defined parameters.
The methodology for calculating the legal rate and how it is applied will be defined by the National Monetary Council and published by the Central Bank. If the legal rate presents a negative result, it will be considered equal to zero for the purpose of calculating interest in the reference period.
Law 14.905/2024 also provides that the Central Bank will make an interactive application available for public access, allowing the legal interest rate to be simulated in different everyday financial situations.
This facilitates the understanding and practical application of the law, promoting transparency and accessibility.
In the contractual sphere, especially in loan agreements intended for economic purposes, the incidence of interest is presumed, which cannot exceed the legal rate referred to in Article 406 of the Civil Code, annual capitalisation being permitted.
The STJ has already established that the charging of capitalised interest in loan agreements is permitted when there is an express agreement.
The new wording of Article 591 of the Civil Code, introduced by Law 14.905/24, specifies that, in the absence of an agreement, the legal rate provided for in Article 406 of the Civil Code applies.
The insurer's delay in paying the claim also requires the monetary adjustment of the compensation due, without prejudice to default interest.
In the context of condominiums, the condominium owner who does not pay their contribution will be subject to monetary correction and agreed default interest or, if not provided for, the interest established in Article 406 of the Civil Code, in addition to a fine of up to 2% on the debt.
The adoption of Selic, equally, is in accordance with Constitutional Amendment 113/21, which also reflects this trend in discussions and convictions involving Public Treasury debts.
With the standardisation introduced by Law 14.905/24, it is expected that there will be a reduction in legal disputes on the subject, since the rules are now clearly and expressly defined.
This predictability is fundamental to legal certainty, as it allows parties involved in contracts and disputes to know exactly what the applicable rates will be in the event of default.
Conclusion
The clear definition of correction indices and interest rates, together with the relaxation of the Usury Law, creates a more stable and favorable scenario for economic and legal development in Brazil.
The integration of a simulation tool by the Central Bank eliminates operational complexities and demonstrates a commitment to the transparency and accessibility of the new rules, ensuring that all citizens can understand and apply the law efficiently.
Furthermore, co-ordination between legislation and judicial decisions, as seen, reinforces the importance of a cohesive and consistent approach to strengthening the Brazilian legal system.
In short, Law 14.905/24 not only marks a significant advance in the standardisation and clarity of monetary correction and interest rules but also exemplifies a concerted effort to improve legal certainty and promote sustainable economic growth in Brazil.
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