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Activities of House Dealers/Agents in Gusau Metropolis: Analysis from Islamic Perspective

Article Citation: Musa, Dalhatu Liman (2021). Activities of House Dealers/Agents in Gusau Metropolis: Analysis from Islamic Perspective. DEGEL: The Journal of the Faculty of Arts and Islamic Studies, Vol. 19, No. 1. ISSN 0794-9316

ACTIVITIES OF HOUSE DEALERS/AGENTS IN GUSAU METROPOLIS: ANALYSIS FROM ISLAMIC PERSPECTIVE

By

Musa, Dalhatu Liman

Abstract

This paper focus on the activities of house dealers or agents in Gusau metropolis while also analyzing their operations to evaluate their compliance with the Islamic Shari’ah principles. The finding of this research shows that the agent activities in Gusau metropolis is solely on their role to market and promote the products as most of the agents needs to know the basic concept of agency or Wakalah in Islam and which will make them act more in accordance with principles of Islam in their day to day business activities. The paper further concluded that the agency system should be further strengthened as it has important role in house sale or renting business. Indirectly, it can enhance the development of Islamic system of business in Gusau metropolis as well as make it known to the society that it is a good system and can completely be translated to Islamic method of business if the laws applicable to were adopted. Qualitative method was used in this research which is based on library research, reference to many books, articles, proceeding papers, handouts, journals, internet source and interview.

Introduction

As the Religion of Islam recognized business activities in day to day life of all Muslims, the execution of contracts or agency should strictly observe the requirements of Islam particularly the Islamic law that are applicable to such activity. Failure to satisfy the tenets of the Shari’ah principles may result in invalidation of the activity and will require purification of the earned income.[1] Subsequently, while Islam continuously explore possible routes to simplify the execution of contracts and to give the society a better experience and provide Muslims with purified wealth, it also try to minimize potential operational lapses in the execution of the activity that may lead to inadvertent financial losses to the parties.

Allah (SWT)[2] said in the Glorious Qur’an:

So send one of you with these silver coins of yours to the city, and let him find which food is the purest, and then bring you provisions from it. Let him be ˹exceptionally˺ cautious, and do not let him give you away.[3]

The existence of many house dealers or agents in Gusau metropolis lately has raised an alarming concern to whether the business is recognized and is in compliance with Islamic principles of law Shari’ah. The identification that the activity is duly recognized and allowed by Shari’ah has give new hopes to the society particularly Muslims to enjoy a system based on divine revelation[4].

Considering the fact that the activities of house dealer or agents is fast growing in Gusau metropolis, and for the fact that Islam recognized a system of business where a person can authorize another person or agent to undertake any dealings on his behalf,[5] Islam applause and appreciate any business that is easier, just and transparent in nature. This paper, therefore, aims to provide the experience and latest progress of the mode of agency in house sales activities. Gusau metropolis is chosen for the purpose of this research due to several reasons, mainly being it a capital city of Zamfara State located in northwestern Nigeria which has an area of 3,364km and population of 383,162 as of 2006 census.[6] The city was further selected as its one of the cities where this activity is being practiced.

The Concept of Contract, Agent and Agency in Islam

Before analyzing the activities of house agents of Gusau metropolis in Islamic perspective, it is important to define the keywords of this paper. These words are “contract, agent and agency. The words are closely related and for proper understanding of the contents of the paper, they will be used where appropriate.

Definition of Contract, Agency and Agent in Islam

A contract in Islamic Law includes both bilateral as well as unilateral contracts. A contract can be defined as the connection of offer and acceptance that results in legal effects on the subject matter of the contract.[7] From the above, therefore, the idea of having contract is to satisfy the consent of both parties to a contract. In Islam, contract is the best available means to reflect the intention and the consent of the parties and nature and classification of a contract in Islamic law depends greatly on the purpose of concluding the contract.[8]

Literally, the term wakalah means protection, delegation, or authorization.[9] However, according to Ibn Abidin, wakalah literally means protection or authorization, while the derived term Tawkeel means authorizing someone to carry out an action.[10]

Technically, wakalah refers to a contract in which a person who has complete legal capacity authorizes another to conclude a certain well-defined permissible contract on his behalf.[11] Wakalah or agency is one of the contracts in Islamic law known to give authorization to the agent to act on behalf of the principal, with or without fee.[12] Agency is also necessitated by the fact that an agent has to perform certain tasks that the principal has neither the time, knowledge, nor expertise to perform him or herself.[13] Therefore, the main purpose of an agency is to facilitate economic exchanges between a principal and third party when such exchanges are hindered by distance, numbers, or when the principal is unable or unwilling to act personally.

On the other hand, Agent or Wakil is a person appointed to act, represent or establishes contractual relations between a principal (asil/muwakkil) and a third party.[14]

From the above definitions therefore, it has been established that Agency or Wakalah is a contract where a principal owner of property can appoint someone known as Agent or Wakil to facilitate a business on his behalf and establish between the principal owner of the property and the purchaser of the property to reach a contractual agreement.

Source of Legitimacy of Agency in Islam

An Imam interviewed on the legality or legitimacy of Wakalah in Islam said that:

“There is a consensus (Ijma) among the jurists on the legality of wakalah in Islam. They argue that, more often than not, individuals cannot administer all their affairs on their own, and thus have a need to delegate some transactions to an agent”.[15]

Thus, the Wakalah contract is seen as a means for establishing cooperation among people and in performing good deeds; hence, deemed permissible by Shari’ah.

Accordingly, he cited a verse of the Glorious Qur’an where Allah (SWT) said:

So send one of you with these silver coins of yours to the city, and let him find which food is the purest, and then bring you provisions from it. Let him be ˹exceptionally˺ cautious, and do not let him give you away.[16]

He further narrated evidences from the Sunnah[17] of the Prophet Muhammad (SAW)[18], making reference to Hadiths which report that the Prophet (SAW) practiced wakalah thus establishing its permissibility. For instance, al-Bukhari, al-Thirmidhi, Abu Dawud and Ibn Majah narrated that the Prophet (SAW) gave him a dinar[19] to buy a sacrificial animal or a sheep. He bought two sheep, sold one of them for a dinar, and brought him a sheep and dinar. So he invoked a blessing on him in his business dealing, and he was such that if he had bought dust he would have made a profit from it.[20]

Based on the above verse and Hadith, it has been clearly shown that the practice of wakalah by the Prophet’s (SAW) and his companion. This system was a common practice in the early period of Islam. In fact, Prophet Muhammad (SAW) was directly and indirectly involved in wakalah and encouraged its proliferation.

An agent[21] interviewed stated that he perform the activity as he heard a scholar making clear the permissibility of it. He stated that, a scholar made it clear to him that his activity is permissible in Islam as human behavior is weak, cannot live alone and require one another to manage the affairs of their life and therefore Islam promotes the use of wakalah in various fields of activities not only on house dealership but also as long as they do not contravene with the Shari’ah principles.

Types of Agent Contracts

From the interview conducted, it was observed that agent activity and contract in Gusau metropolis can be divided into several categories based on various nature of the contract. It can be seen through its scope of authority, sources of authorization and payment to the agent or Wakil.

Scope of Authority

The scope of authority of the agent can either be general (unrestricted) or specific (restricted). General or unrestricted is where the principal give a command or instruction without specifying any conditions. For instance, the principal asks the agent to buy a house without specifying the location, type or price of the house. While in specific delegation, the principal identifies certain requirements to the agent, such as price, feature and mode of payment. For example, the principal says “Buy me a house which costs about N1,000,000 via installment payment”.

It has been observed that most of the agents in Gusau metropolis are following the specific agency as a scope of authority which all jurists agreed to its permissibility because the general or unrestricted scope of authority may lead to excessive uncertainty (Gharar).[22]

Source of Authorization   

The perspective of sources of authorization, in agency falls under the category of agreed deputation.[23] In this type of deputation there must be an agreement between the principal and the agent in order for it to be valid. As such; it fits the requirement of wakalah since in wakalah there must be a mutual agreement reached between both concerned parties.

In Gusau metropolis, the source of authorization can be said to be done since there is agreement between the principal and the agent in order for the business to be valid. By normal procedure, the principal call the agent and inform him that he want to sell or rent his house on so fixed price, and the agent will take that into consideration after reaching agreement with the principal, it doesn’t matter whether the agreement is written or verbal as long as it’s observed in appropriate manner.[24] Based on the above therefore, it can be said that the source of authorization in this regard is observed according to Islamic laws of Mu’amalat and this can be said to have made the activity of house dealers or agent’s source of authorization valid and according to Islamic Shari’ah rites.

Payment to the Wakil

The wakalah contract can be valid with or without the wakil or agent being paid a wage. The basis for the permissibility of paid agent is due to the fact that the agent has made a useful work for which the agent has the right to ask for remuneration. When the agent is paid, its ruling falls under the ruling of Ijarah.[25] Based on the interview conducted, all of the agent in Gusau metropolis charge or receive remuneration from the principal when they sell or rent the house.

Furthermore, in a contract where the agent is entitled to a wage, the principal may stipulate a condition that the agent does not terminate the agency before an agreed date. If the agent terminates before the agreed date, the principal will not be required to pay any wages to the agent. Nevertheless, the unpaid agency is also allowed and it will be regarded as a form of charitable act. However, the payment of agent or his non-payment doesn’t invalidate the contract in Islamic perspective only depending on the statement of agreement between principal and the agent.

Elements of Agency (Wakalah)

For the elements of wakalah contract, the scholars assume the same approach as in other contracts, whereby it consists of offer and acceptance (Sighah)[26] only. On the other hand, other scholars including the Shafi’i, the Maliki and the Hanbali are of the opinion that it comprises of four elements, namely: offer and acceptance, the principal, the agent and the object. In a contract of agency, the person who authorizes the power is called the principal (muwakkil) and the person who is appointed to exercise the power is called the agent (wakil) and the subject matter of which the authority is given to exercise the power is called the object (muwakkil bih).[27] Each of the elements needs to fulfill certain conditions as underlined below:

Offer and Acceptance (Sighah)

Sighah means a pronouncement of delegation. It is pronounced by the principal and the agent as a symbol of pleasure to delegate a job and to accept it. The jurists agreed that the acceptance of wakalah is not restricted to verbal indication only. It can be established through several other means such as action, writing and sign (gesture). The jurists also rule that the acceptance can either be done immediately or delayed.[28] In Gusau metropolis, the sighah is being observed in the activity between the agent and the principal.

The Principal (muwakkil)

The principal must be a person who own the goods or under his authority to act on the property. The principal must also be a person who eligible to take the action and should posses a sound mind. Hence, a wakalah from an insane or a child is invalid.[29] In addition, the principal should make a delegation based on his own free will without any coercion from others. It goes same to the agent where he should not be forced in conducting the task given to him.

The Agent (wakil)

The conditions of the agents are quite similar with the principal. The agent must be a person who has a sound mind, otherwise the contract is invalid.[30]

The Object (muwakkil bih)

The object of the agency contract should be eligible for legal authorization such as financial matters. The agency is not permitted in pure acts of worship such as prayer and fasting, oath-taking and testimony.[31] Meanwhile, in acts of worship that have a financial element such as Zakat, Hajj and slaughtering sacrificial animals, the agency is allowed by most scholars. Moreover, it should not involve activities which are prohibited in Islam or acts of dishonesty such as theft and usurpation of property. In Gusau metropolis, the house agents make sure that object is known in order to avoid uncertainty (gharar).

Generally, based on the above, the activity of house agent in Gusau metropolis is a specific and restricted agency as its contract may be varied depends on the principal. Indeed, the agent of the house gets their own wages and remunerations. Thus, it also falls under the category of paid agency.

As for the conditions of agency, its application by the agents does comply accordingly to Shari’ah principles as described previously. The offer and acceptance of both contracting parties were normally done in verbal and writing. The principal and the agent are both capable to enter into the agency contract as the agent is a person who employed by the principal. The principal is a person who has a sound mind, has a good job, and background. The object of its contract has been permitted under the Shari’ah principle.

Activities of House Agents in Gusau Metropolis: Analysis from Islamic Perspective

According to Islamic perspective, belief and faith are important in creating the foundation of a Muslim character. Courtesy of the property, energy, attitude, good advice, sympathy, pleasant disposition and delicate language is an advantage of human beings as creatures of Allah, the most beautiful and perfect. Therefore, our duty as Muslim and in discharging the role as agent generally must have a good morals and manners such as honest, trust, deliver, patience, dedication and wise.[32] As the agency system grant a positive contribution to society by introducing and spreading the concepts of mutual assistance, cooperation, and good will among the general public. This activity brings good and promotes public interests and values that are in accordance with the Shari`ah objectives.[33]

Nevertheless, it is impossible for every system to have no defects or problems, especially a system that interacts directly with the society. Moreover, when the system depends on human interventions, which is subject to a variety of human emotions and judgment, for example, in the agency system, the agent may come from the people in the society which could be various kinds of people and totally have different types of behavior and attitude. Not all agents will consistently obey the rules that have been set up by the principal owner of the property or by the Islamic Shari’ah.[34]

An interviewee[35] indicates three problems in house agency. It should be emphasized that the overall system does not cause these problems, but it is the result of agent’s action which is human aspect. It consists of three different area of the agent’s job such as the acquisition of consent from the principal, collection of money from the participants and the delivery of sales agreement.

In the acquisition of consent from the principal, the agent uses different ways to achieve their target potential participants including presentation, advertisement and publication. In Gusau metropolis, the agent is obliged to convince people about the advantages of the house compared to others in order to gain competitiveness and good credibility. The agent also assists the principal by collecting fund from the participant.[36] Since they are representing him, it is very important for them to produce a good image and build a strong relationship with the principal to maintain the credibility and integrity of the business.[37] While some agent discloses all material facts or any risks to be undertaken by the participant, some do not. The agents have their service advertised to potential customers who are most times wealth to do individuals. However, the problem is about the content of the information itself. Sometimes, the agent will produce their own version of information regarding the services and plans offered which is contrary to the standard of the principal. As a result, the participant will be confused.[38] Also, in Gusau metropolis, it was observed that some house agents hide the defects of house while describing it to the customers. This attitude can be said to, according to Shari’ah terminate the agreement even after sale; this is because hided defect invalidates a contract in Islam[39].

In Islamic perspective, in this marketing stage, the agent needs to gain clear and accurate information of the participant before noting them down or taking them to the house. The agent needs to inform and notify the principal owner immediately of any incident or circumstances which may give rise to sale of the house as the agent is bounded by certain confinements and restrictions under the terms and conditions of the contract, as imposed by the principal. An example of this restriction in which the agent is obliged to follow is the house rate and giving clear image or specification of the house to the customer while also explaining the positive and negative covenants by the agent. Therefore, to avoid invalidating contracts by the actions of house agents, this act needs to be reformed.

However, in analyzing the payment of the agent or collecting money from the participant or principal by the agent or on whether the agent must be remunerated for the service rendered or not. In Gusau metropolis, most agents serve for remuneration or commission after sale. In this event, and according to Islamic perspective, the agent shall be entitled to a commission at the rates already in force. However, the principal shall not withhold or change anything from the originally stipulated remuneration or commission and should pay accordingly.

On the delivery of sales agreement, principal and the agent in this agreement, the agent shall acts in accordance with the directions or instructions given by the principal, so as not for the principal to terminate the contract. It was observed that, the agents in Gusau metropolis are persons of a sound mind and has the ability to understand the nature of the contract and the principal is entitled to terminate agreement if the agent becomes mentally incapacitated. Hence, this is in conformity with the standard or Islamic principles of law of contract that only a person who has a sound mind sign agreement. However, with regard to the collection of the money from the participant, some agents do not hand over the money as soon as possible to the principal once the money had been collected. The principal had given a reasonable time limit to the agent for the handing over process, but it is still ignored by the agent. If it still continued, it will lead to the misappropriation of money as some agents will sometimes sell the property to another participant or customer. Thus, it infringes the contract between the principal and the agent. On the issue of delivery certificates to the participants. Some of the agents failed to deliver the certificate after making the sale. It shows that the agent failed in their responsibilities. However, not only that, it sometimes tarnished the image of the principal as some participant may see it as dubious activity or business and thus it will reduce the confidence of the participants toward the principal in another sale.

Also, in Gusau metropolis, it was analyzed whether condition regarding offer and acceptance is in conformity with Islam. It was observed that this condition or element is being practiced by the agents in the metropolis as most agents makes pronouncements either in writing or verbal. In the event that the agreement is in written, both parties put their signatures on the last page of an agreement after they read and understand the terms and conditions. Therefore, in Islamic perspective, this condition has fulfills the condition or element of offer and acceptance.

On the element of object or subject matter, this requirement is one of the requirements that the participating party first agree as much as it’s suitable for him to purchase. In Islam, this object, needs to be visible and accessible to the participant before purchase. This element is being in practice by the agents in Gusau metropolis, it can therefore be said that it’s in conformity with Islamic practice as much as there is no element of uncertainty which may later invalidate a contract and as long as the agent will act in according to the teachings and doctrines of Islam. Furthermore, the agency system is in fact approved by the Shari’ah, as verses from the Quran testify. One of the verses that testify this approval is in Surah Al-Kahf, Verse 19, which tells of the episode when one of the companions in the cave was chosen to buy food from the city: ‘Now send ye then one of you with this money of yours to the town, let him find out which is the best food (to be had) and bring some to you, that (ye may) satisfy your hunger therewith.’ Islamic scholars have unanimously agreed that this verse relates to the permissibility of the agency system.

It was observed that from the activity of house agents in Gusau metropolis, that, the principal is entitled to terminate the contract if the agent fails to comply with the stipulated conditions. However, the principal is not indemnified against all losses, costs and damages as a result of the agents action. In Islamic perspective, in cause of agreement, the principal is entitled to terminate the agreement if the agent fails to comply with the provisions of any prevailing statutory provisions governing the activity. In the same vein, the agent shall also indemnify the principal against all losses, costs and damages arising out of their breach of the agreement. This therefore needs to be corrected to reflect the Islamic Shari’ah.

Conclusion

The emergence of the concept of agency is important to all people, as it is practiced on a large scale in their daily activities. Commercial activities such as house sale and renting activities as well as marketing activities depend largely on the skills and expertise of agents. The agent also plays a vital role in ensuring the best performance and the excellent achievement of a sale, especially if the principal relies solely on the role of agents to maintain its business.

The finding of this research shows that the activities of house agent in Gusau metropolis rely solely on the role of agents to market and promote their products. The agents act in accordance with the agreement with the principal as to the duties and work to be done by the agent.

As a business activity, agents in Gusau metropolis operations and practices need to really comply with the Shari’ah principles. Although it is known as Wakalah from the surface, it must comply with the Shari’ah principles; some people still has a doubt to use agents’ in house sale or renting activity. This is because of their assumption that house agents are not complying with Islamic etiquettes and principles in sale.[40] It finds that the practice of house agent business is in accordance with the Islamic teachings since it falls under Wakalah which agreements created by the under it also comply with the principles of contract in Islam.

Recommendations

The agency system is a good system in helping the development and performance of house sale. However, there are some problems that need serious attention in order to ensure the benefit of this system. As discussed previously, there three different area of the agent’s activity:

In the acquisition of principal consent, the different ways uses by the agent to achieve their target will impede the basic agreement and understanding between the principal, the buyer and the agents. It can be suggested that, once the principal receives any complaint or relevant information which relates to the issue, an in-depth investigation may be conducted. If the agents are found to be guilty of misleading the buyer, the principal may immediately terminate the agent’s contracts.

Apart from this, the principal may produce enough conditions to attract customers and ensure that the agent does not produce their own version of information.

Lastly, in the problem of the collection of money from the participant, the agents can continue to be reminded of the consequences of misusing the principal’s money through sermons in mosques and by the principals themselves. The principal may also disburse directly to the participants either renewal notice or lapse notice and periodic collection statement. In this way, the participants will be notified whether the money that they had paid had been received by the principal or not. If there is difference occurred between the amount paid and the amount received by the principal, the participants either can inform the principal, or confront the agents themselves. This will ultimately, prevent the misappropriation of money.

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[1] M.D Abduljalil and M.K Rahman, “Islamic Law of Contract is Getting Momentum”, International Journal of Business and Social Science, Vol. 1, No.2, November, 2010, p.178.

[2] SWT is the acronym for the Arabic terms Subhanahu Wata’ala (Allah the Exalted). It is encouraged to be mentioned after the Name of Almighty ALLAH is cited.

[3] Qur’an 18:19

[4] M.Y Saleem, Islamic Commercial Law, John Wiley & Sons Singapore Pte. Ltd, Singapore, 2013, p.68.

[5] H.A Annuar, “Al-Wakalah and Customers’ Preferences Toward It: A case Study of Two Takaful Companies in Malaysia”, American Journal of Islamic Social Sciences, Vol. 22, No.1, 2005, p.30.

[6] Gusau: https://en.wikipedia.org/wiki/Gusau Retrieved on: 26/03/2021.

[7] M.D Abduljalil & M.K Rahman, Islamic Law of Contract is Getting Momentum, Opcit, p.178.

[8] Ibid, p.2

[9] M.Y Saleem, Islamic Commercial Law, Op.Cit, p.68

[10] I.Abidin, Hashi’ah Ibn Abidin Radd al-Muhtar ala al-Durr al-Mukhtar. Dimashq, Dar al-Thaqafah wa-al-Turath, n.p, 2000, p.38.

[11] M.Y Saleem, Islamic Commercial Law , Op.Cit, p.68

[12] H.A Annuar, S.A Rosly & H.M Abdul Rashid, “Al Wakalah and its Impact on the Growth and Performance of Takaful Companies: A Malaysian Case”, The European Journal of Management and Public Policy, Vol. 3, No.1, 2004, p. 86.

[13] Ibid

[14] Ibid

[15] Muhammad Isah,(58), Imam, Janyau Ta Gabas, Gusau, Interviewed on 18 March, 2021

[16] Qur’an 18:19

[17] Sunnah is an Arabic term which means the traditions and practices of the Islamic prophet, Muhammad, that constitute a model for Muslims to follow. 

[18] SAW is the acronym for the Arabic terms word “Sallallahu Alaihi Wa Salaam” (may Allah’s prayers and peace be with him).

[19] Dinar is the principal currency unit in several countries near the Mediterranean Sea, and its historical use is even more widespread.

[20] Sunan Abi Dawud, Book 23, Hadith 59.

[21] Mukhtar Umar, (45), Estate Agent, Tudun Wada, Gusau, Interviewed on 17/03/2021.

[22] M.M Billah, Agency Contract under Conventional Law and Islamic Law as Manifested in the Civil Code of Oman: A Comparative Analysis, Electronic Journal of Islamic and Middle Eastern Law,Vol.4, 2016, p.110.

[23]M.D Napiah, The Theory Of The Contract Of Agency (Al-wakalah) In Islamic Law, n.p, United Kingdom, 1995, p.44

[24] Suleman Dillali, (55), House Agent, Samaru Area, Gusau, Interviewed on 18/03/2021.

[25] Ijarah is an Arabic term which means "to give something on rent or providing services and goods temporarily for a wage.

[26] Sighah is a term used to refer to the formal exchange which takes place between the contractual parties indicating their willingness to enter into the contractual agreement and therefore constitutes the contract itself.

[27] N.A Mohd Amin & M.A Hamid, Sharia’ah Compliance of Wakalah Concept in Takaful Operation: A Case Study of Takaful Operation in Malaysia, Tazkia Islamic Finance and Business Review, Vol.8.2, n.d, p.217.

[28] M.M Billah, Agency Contract under Conventional Law and Islamic Law as Manifested in the Civil Code of Oman: A Comparative Analysis, Electronic Journal of Islamic and Middle Eastern Law,Vol.4, 2016, p.116.

[29] Ibid

[30] Ibid

[31] Ibid

[32] N.A Mohd Amin & M.A Hamid, Compliance of Wakalah Concept in Takaful Operation: A Case Study of Takaful Operation in Malaysia, Opcit, p.221

[33] Mustapha Mudassir, (44), Estate Agent, Albarkawa Area, Gusau, Interviewed on 20/03/2020

[34] Ibid

[35] Ashiru Saminu, (54), House Agent, Barakallahu Area, Gusau, Interviewed on 18/03/2021.

[36] Salisu Lawal, (33), House Agent, Unguwar Dallatu Area, Gusau, Interviewed on 19/03/2021

[37] Ibid

[38] Ibrahim Dillali, (45), House Agent, Sabon Gari Area, Gusau, Interviewed on 19/03/2021

[39] M.A Khan, The legal effects of unfair contracts of sale in Islamic law, Al-Adwa Journal, Vol.49, No.33, June 2018, p.31.

[40] Abdullahi Muhammad, (56), House Agent, Premier Road, Gusau, Interviewed on 19/03/2021

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