Position Paper – Obligations of a Dementia Patient on Fast Days and in Mourning Rites of the Three Weeks

Rabbi Yuval Cherlow, Rabbi Uriel Ganzel, and Rabbi Shaul Bruchi

Guiding principles, customs, and halachot for the Three Weeks and fast days for a person suffering from dementia and those around them.

1. Introduction

On Tisha B’Av and during the Three Weeks we afflict ourselves and mourn the destruction of the Beit HaMikdash, as well the rest of the struggles that have occurred in this time period. Through the halachot and customs that have been propagated throughout the generations, the Sages designed the framework of the Three Weeks and the month of Av as days where we form within our consciousness an “old mourning” – mourning over a destruction we never saw or remember1. A person with dementia begins to lose their sense of self with the progression of the illness – their consciousness, their memories, and the ability to communicate with the environment. The decline in their faculties – and their halachic classification as a sick person or one who has no intellect – influences their level of obligation in mitzvot. Does a person with dementia need to fast? Is it permissible for them to listen to music if it calms them down?

2. Guiding Principles

a. An elderly person and sick person are obligated in all mitzvot, just like any other Jew2. However, a person with dementia experiences a worsening decline in their consciousness – and this has ramifications on their core obligation in mitzvot. The obligation is dependent on their cognitive level and the specific criteria of that mitzvah. When they are aware that it is the Three Weeks or that today is Tisha B’Av or the 17th of Tammuz, as well as generally aware of the halachot and customs – they are obligated in them. When they are unaware of the situation and are unable to fulfill the obligations on their own volition – they are not obligated in them3.

b. Even when a dementia patient is obligated in a mitzvah, if it requires strenuous effort or great distress to fulfill, they are exempt. A dementia patient requires a fixed, orderly schedule and their habits are important anchors to their daily routine. Therefore, if mitzvot and customs could potentially impact the routine in a way that will impair the patient – they are exempt4.

c. Those around the patient should not merely guide the patient through their halachic obligations. Fulfilling mitzvot and belonging to a community that observes them is a right, and a person with dementia is entitled to be part of the community and not isolated from it. At times, being confronted with familiar customs can benefit the patient. One should however evaluate each case individually, and if the fulfillment of halachot and customs benefits the person, one should assist them in fulfilling them.

d. Fast days and some of the mourning rituals are rabbinic in nature5, and others are simply customary and non-halachic. The sages determined the halachot for healthy individuals and not those that are sick6. Therefore, when fulfilling them causes distress, one should be lenient. It is important to emphasize that all halachot stated here – is different than the halachot for Yom Kippur, which is biblically ordained7.

3. The Fasts of Tisha B’Av and the 17th of Tammuz

a. A person in the early stages of dementia aware of the fact that today is Tisha B’Av or the 17th of Tammuz, generally healthy, and does not have any other medical issues is obligated to fast. If he forgets it is a fast day and wishes to eat, those around him must remind him that today is a fast day – in a manner which will not cause him embarrassment8.

b. At a more progressive stage, even if the person is still aware of the fast, he is generally defined as a non-critical patient (‘Choleh She’Ein Bo Sakanah’) and is exempt from all fasts except for Yom Kippur9. If he understands the concept of a fast day and it is possible – he should withhold from eating in the evening and thus participate in the mourning and sorrow of the congregation10.

c. Obligations in the rest of the afflictions of Tisha B’Av – such as the prohibition of bathing and wearing leather shoes – are on a lower level than the obligation to fast. When it is enough for those around a patient to remind him of the situation, one should mention the obligation and assist him in avoiding transgressing the prohibitions. However, when keeping the prohibitions begins to burden the dementia patient or confuses him, and of course when he is unaware of the prohibition, one should allow him to act as he can and wants11.

d. A person with dementia who takes medication regularly – should take it on Tisha B’Av and the 17th of Tammuz as they would on a normal day. This is also the case for sedatives, even if it seems like they do not have a direct medical need. If the person requires water in order to swallow their pills or must eat before taking medications, they are permitted – and obligated – to eat and drink12.

4. The Customs of the Three Weeks, From the Beginning of Av and the Week of Tisha B’Av

a. It is an accepted custom not to shave and get a haircut during the Three Weeks, from the start of the month of Av or during the week of Tisha B’Av13. A person with dementia who is not aware of this obligation is not required to perform this, but as previously mentioned – there is also a benefit to being part of a greater community and acting in accordance with their customs. Therefore, it is proper to avoid shaving him.

b. If the fact that they are unshaven impacts their attitude or behavior, or if this matter impairs their care due to their looking neglected – one should perform the action that benefits them the most14.

c. The custom of most Jewish communities is not to eat meat or drink wine from Rosh Chodesh Av or from the beginning of the week of Tisha B’Av. A person with dementia that can abstain from eating meat benefits by observing the customs, however when there is a nutritional requirement, even minor, when it is burdensome to bring special food to one who is being taken care of in a senior center, or when the person requests to eat meat – it is permitted to eat meat on these days15.

d. It is prohibited to wash clothes from Rosh Chodesh Av or the beginning of the week of Tisha B’Av. A non-Jewish worker is also not allowed to wash the clothes of a Jew. However, if the clothes are dirty with vomit or urine, etc., it is permissible to wash them16.

e. In the hospital, health facilities, and assisted living homes – it is permitted to do laundry as normal and for patients to wear clean clothes17.

f. It is a custom to avoid bathing from Rosh Chodesh Av or the beginning of the week of Tisha B’Av, both in hot and lukewarm water. A person with dementia is permitted to bathe as they normally do in order to clean themselves in the days before Tisha B’Av. Even bathing in a pool, when there is a medical need or when it assists in calming the patient, is permissible18.

g. A person with dementia who is calmed by listening to music – is permitted to listen to music during the Three Weeks19.

Caretakers and family members who are unsure of how to act during the Three Weeks are welcome to call the Tzohar Ad 120 Call Center for answers to any questions. Don’t go through this alone! The rabbis and social workers in the call center are here for you and will assist you in the burden of taking care of family members.

הערת שוליים

  1. Rabbi Yosef Dov Soloveitchik, Out of the Whirlwind: Essays on Mourning, Suffering and the Human Condition (Hebrew Edition), Jerusalem 5764, pages 49-64.
  2. This paper focuses on the dementia patient, but as explained in endnote 9, any elderly individual who feels week is considered a non-critical patient and is exempt from fast days, aside from Yom Kippur, and may be as lenient as necessary in the Three Week customs, as explained later on. Some of the topics discussed here are brought in the compendium Tzohar Ad 120: The Halachot of Terminally Ill and Dementia Patients, Chapter 14.
  3. Rabbi Zalman Nechemiah Goldberg (‘Marriage of the Intellectually Disabled’, Tchumin, 7 [5746], page 239) defines the halachic status of a fool thus: mitzvot that he comprehends – he is obligated to keep similar to one who is mentally competent; mitzvot that they do not comprehend or are unaware of – he is considered to be unpreventably impaired from performing it and are exempt. One should emphasize that a person with dementia is not considered mentally incompetent (‘Shoteh’) or a fool (‘Peti’), yet it seems that this is the closest existing halachic model for extrapolating the halachot of this patient. Rabbi N Bar-Ilan (‘The Weak-Minded, the Mentally Incompetent, and the Fool’, Tchumin, 8 [5747], pages 103-111) writes that there are two assessments for evaluating if a person can be halachically defined as a fool: First, if they answer simple yes or no questions, and secondly, if they understand the extent of the matter they are performing. According to him, a person is obligated in mitzvot if they understand that God gave them us the Torah and that we fulfill mitzvot (in line with the definition of Rabbi Shlomo Zalman Auerbach, Minchat Shlomo Responsa, volume 1, article 34) and if he understands that the action being performed is a mitzvah. Rabbanit M. Tikuchinsky (‘Growing Old and the Phenomenon of Aging in Halacha’, Tchumin, 41 [5781], pages 266-279) writes that the process of aging is a long one, of which it is impossible to define a specific point in time as the loss of mental competence. According to her, it is also incorrect to define loss of competence uniformly for all mitzvot. She relies on the opinion of Rabbi Zalman Nechemiah Goldberg and offers a model of obligation in mitzvot based on the level of comprehension and understanding the elderly person has – in tandem with the level of competence necessary to fulfill each mitzvah. An elderly person’s obligation in mitzvot is dynamic, where each decline in cognitive functioning brings with it an exemption from certain mitzvot. Therefore, a dementia patient’s precise status is dependent on numerous factors, especially their exact mental state and the awareness and capabilities necessary to fulfill each specific mitzvah, and therefore it is difficult to define absolute values for this matter, similar to what the Rambam writes regarding the fitness of a fool to testify: “and this matter is at the judge’s discretion for it is impossible to determine competence by text” (Mishneh Torah, Hilchot Eidut, chapter 9, halacha 10).
  4. The issue of how much a person is obligated in fulfilling the positive commandments when they are sick or fulfilling mitzvot that could harm them is discussed mainly in the words of the Achronim. Practically, the poskim agree that in any situation where there is risk of physical impairment, a positive commandment is displaced due to the illness. They disagree when there is no physical risk but there is a concern for developing sickness. The Maharam Shik (Maharam Shik Responsa, Orach Chaim, article 260) writes that one should fulfill a mitzvah even if it causes him harm, as long as there is no concern for loss of life, and is supported by the Divrei Malkiel Responsa, volume 3, article 32, and the Shevet HaLevi Responsa, volume 5, article 219. In the Minchat Asher, 1 (Bereishit), article 39, Rabbi Asher Weiss writes that in cases of irreversible damage one is not obligated to fulfill a mitzvah, but regarding general suffering, and even mild sickness of which one can recover from, it is a pious matter – and at times even an obligation – to endure this suffering. To contrast them, the Mishneh Brura (article 472:35 regarding drinking wine for the four cups; article 473:43 and the Shaar HaTzion subarticle 1 regarding eating Maror), and the Binyan Shlomo Responsa (volume 1, article 47) hold that there is no obligation in positive commandments that cause development of illness. This is also written by the Kaf HaChaim, Orach Chaim, 473:88; Teshuvot VeHanhagot, volume 1, article 302; and the Tzitz Eliezer Responsa, volume 14, article 27:1 regarding eating Matzah. Rav Moshe Feinstein (Igrot Moshe Responsa, Orach Chaim, volume 1, article 172) exempts a psychiatric patient from leaving the hospital to hear the shofar, since preserving their health is more important than conserving their finances. This is also the conclusion of Rabbi Yaakov Ariel in BaOhalah Shel Torah Responsa, volume 2, article 92: “a patient who can only fulfill a positive commandment with extreme difficulty or great suffering, based on my teacher’s testimony, is exempt from the fulfillment of the mitzvah”. See Rabbi Yonatan Rosensweig and Dr. Shmuel Harris as well, I Ask For My Soul: Halachot of Mental Health, Jerusalem 5782, page 41 and endnote 29, and page 46 endnote 35, and in the addendum on page 420-426. In light of the sources brought here, their conclusion is that the poskim are evenly matched on both sides, however those who are lenient are a slight majority. Even when there is no harm to the patient, the issue of how much a person must burden themselves in order to fulfill a positive commandment arises. The Avnei Nezer Responsa (Even HaEzer, article 1:8) learns this from the halacha that instructs that there is no obligated to give more than a fifth of your property for a positive commandment (Rema, Shulchan Aruch, Orach Chaim, article 656:1) and writes that a person is not obligated to divorce his wife in order to fulfill the commandment to be fruitful and multiply, since divorce is more difficult for a person than a major financial loss (this is also written in Yoreh Deah, article 321, regarding concern of damage by fulfilling mitzvot). Rabbi Moshe Feinstein (Igrot Moshe Responsa, Orach Chaim, volume 2, article 27) holds like him and writes that even biblical mitzvot have defined measurements, and a person is not obligated to fulfill a positive commandment at any cost – however Rav Feinstein does not define the level of burden necessary to exempt. Rabbi Asher Weiss (Minchat Asher, 1 [Bereishit], article 39, mentioned earlier) writes: “even if he is exempt from performing an overwhelming burden, nevertheless it is definitively not a prohibited action. On the contrary, there is piety in any burden he undergoes in performing mitzvot”. In this case, it is on the one hand agreed that a great burden can be a reason for exempting from fulfillment of a mitzvah, and on the other hand it is obvious that in many cases fulfilling mitzvot is burdensome and a person is obligated to try and keep them. It is difficult to precisely define which burden is grounds to exempt and the poskim in the aforementioned responsa indeed do not define this, yet the burden must be at a level equivalent to a loss of one fifth of one’s assets. Therefore, it seems that a person with dementia, when they are able to fulfill the mitzvah, is obligated in it and its performance may even benefit him by preserving a normal routine. However, when he is confused, when there is difficulty communicating with him, and when keeping mitzvot involves great difficulty and even suffering, he is exempt from the mitzvah. One should add that even if generally it is noble to burden oneself more in order to fulfill a mitzvah beyond its base halachic requirements – and this is indeed pious – the desire to act piously is of value when it comes from the patient and worthless when it comes from those around him. Furthermore, the caretakers of the patient, who carry the heavy burden of treatment, are not required to be stringent and act to assist a patient in performing an action that they are not obligated in and do not express wishes to participate in. When a patient is interested in performing a mitzvah and it is advantageous for conserving their daily routine, it is a mitzvah to help him even when he is not obligated to do so.
  5. Fast days are primarily from prophetic works or mystical in nature, but their status nowadays is rabbinic. See the Beit Yosef, Orach Chaim, article 550; Mishneh Brura, ibid., subarticle 1. The poskim disagree regarding whether Tisha B’Av is of higher status, yet according to the majority of poskim it is also rabbinic. See Rabbi Nachum Eliezer Rabinovitch, ‘Pregnant and Nursing Women on Fast Days’, Tchumin, 17 (5757, pages 345-346).
  6. “In cases of sickness, the Rabbis did not decree” – thus writes the Ramban in the Torat Adam, Shaar HaAvel (Rabbi Cheval Edition, page 255) regarding the fast of Tisha B’Av, and this is the halacha according to the Shulchan Aruch, Orach Chaim, 5754, see later endnote 9. 
  7. See what we have written in Guidelines for Yom Kippur.
  8. Rabbi Asher Weiss (Teaching Methods: A Collection of Lectures, Responsa, and Piskei Halacha Regarding the Ill on Yom Kippur, Jerusalem 5769, article 2:2, page 8) writes that when the patient is mentally competent – one must prevent them from violating a transgression, however their family members are not obligated to overburden themselves, and therefore the family has no obligation to sit by him all day in order to prevent them from eating. See Nafshi BeShe’elati, chapter 8, article 5, page 124.
  9. A non-critical patient is exempt from fasting on the Fast of Gedalyah, the 10th of Tevet, and the 17th of Tammuz (Shulchan Aruch, Orach Chaim, article 550:1; Mishneh Brura, ibid., subarticle 4) and all the more so from the Fast of Esther (Shulchan Aruch, Orach Chaim, article 686:2). A patient is exempt from fasting on Tisha B’Av as well and does not need to eat in increments (ibid., 554:6). However, the Rema writes (ibid.) that it is customary to fast on Tisha B’Av as long as there isn’t great suffering, but he concludes that one who is lenient is not lacking. The Mishna Brura (ibid., subarticle 16) writes that all the more so a frail person who is ill in a non-critical manner should not be stringent on himself. This is written by Rabbi Yitzchak Yosef as well (Yalkut Yosef, Halachot of the Fast of the 17th of Tammuz, article 5) and adds: “and elderly, frail people that suffer in their fasts are exempt from all of these fasts including Tisha B’Av”. For additional sources, see the Piskei Teshuvot, article 554:9 and footnote 44. Therefore, regarding a person with dementia, not only does physical suffering and harm exempt one from the Tisha B’Av fast but any suffering connected to dementia as well.
  10. See Piskei Teshuvot, ibid., footnote 45.
  11. The severity of the other afflictions is lighter than the prohibition of eating and drinking, and a non-critical patient is exempt from them even on Yom Kippur. This is the ruling of the Rambam, Mishneh Torah, Hilchot Shvitat Asor, chapter 3, halachot 2-9, and brought as halacha by the Shulchan Aruch, Orach Chaim, article 614:1 regarding the prohibition of anointing oneself, subarticle 3 regarding wearing leather shoes, and the Rema (ibid., 613:9) regarding bathing. Therefore, a person with dementia who has difficulty with any of these afflictions, even a minor difficulty, is exempt from them. 
  12. A person with dementia that needs medication is a non-critical patient, and according to that which is elucidated in endnote 9, they are exempt from the fast.
  13. The Mishnah (Taanit 4:7) prohibits getting a haircut the week of Tisha B’Av. This is confirmed by the Gemara as well (ibid. 29b-30a) and is ruled as halacha by the Shulchan Aruch, Orach Chaim, 551:3. In subarticle 12, the Shulchan Aruch rules that the prohibition applies to both haircuts and shaving one’s beard. The Rema (ibid., 4) adds that the custom is not to get a haircut for all the Three Weeks. Even according to the Rema, the difference is in the level of obligation: the week of Tisha B’Av is halacha; earlier than this, it is a custom.
  14. The poskim are lenient regarding shaving when the person must look clean for their job, due to the desire to prevent a financial loss. Rabbi Moshe Feinstein (Igrot Moshe Responsa, Orach Chaim, volume 4, article 102) permits shaving in these cases for the Three Weeks but prohibits it during the week of Tisha B’Av. In the Ma’adanei Shlomo (Jerusalem 5763, volume 3, page 54) it is written in the name of Rabbi Shlomo Zalman Auerbach without differentiating between the week of Tisha B’Av and the days before it. The Kaf HaChaim (Orach Chaim, article 493:19) permits this on Sefirat HaOmer and does not address the halachot of Tisha B’Av. See also Rabbi Shlomo Zalman Brevin, Tremendous Gates of Halacha, volume 3, article 122:5. The mental wellbeing of dementia patients and concern for neglect in treatment are no less important than loss of money, and one should be lenient.
  15. The Mishnah and Talmud do not mention the custom not to eat meat but it appears in the Rishonim. The Shulchan Aruch (Orach Chaim, 554:2) writes: “there are those who act not to eat meat and drink wine on this week, and there are those who add from Rosh Chodehs until the fast, and there are those who add from the 17th of Tammuz”. The custom of the majority of Sephardim is not to eat meat from the end of Rosh Chodesh Av (Yechave Da’at Responsa, volume 1, article 41); The Ashkenazi custom is not to eat meat even on Rosh Chodesh (Mishneh Brura, article 554:58); and there are some Yemenites who have the custom to eat meat for all days except for the seudat mafseket (Rabbi Yitzchak Ratzabi, Abridged Shulchan Aruch, Orach Chaim, volume 3, article 103:8). The Rema (Orach Chaim, 554:2) writes that a sick person is permitted to eat meat and the Mishneh Brura (ibid., subarticle 61) writes that even if one is only a little sick this is permissible, and also writes that a mentally incompetent person may eat meat. Rabbi Ovadiah Yosef rules (Yechave Daat Responsa, ibid.) that even a patient who has recovered but is still weak may eat meat, as well as one who is in a sanitorium and cannot receive any other food. Regarding saying the beracha of Shehechiyanu during the Three Weeks, the Chidah writes (Birchei Yosef, Orach Chaim, article 551:13) that the patient may eat a new fruit and make the shehechiyanu beracha, since this has a physical benefit, and in cases of illness the rabbis did not decree it is forbidden.
  16. The Mishnah (Taanit 4:7) prohibits doing laundry during the week of Tisha B’Av. T This is confirmed by the Gemara as well (ibid. 29b-30a) and is ruled as halacha by the Shulchan Aruch, Orach Chaim, 551:3. The Rema (ibid.) adds that it is customary not to do laundry from Rosh Chodesh. Even a non-Jew is not permitted to wash the clothes of a Jew (Rema, ibid.). Frequently dirty clothes are permissible to wash (Shulchan Aruch, ibid., 14; Mishneh Brura, ibid., subarticle 84). A non-Jewish worker is permitted to do laundry in the Jew’s house, but the Jew is prohibited from doing the non-Jew’s laundry (Shulchan Aruch, ibid., 5). Therefore, if the worker normally does laundry for him, he must turn on the machine. The rest of the activities may be performed by a Jew (See Rabbi Yosef Zvi Rimon, Old Age, Alon Shvut 5783, page 254).
  17. The Mishneh Brura (article 554:84) writes that the reason it is permissible to wash the clothes of children is that there is no joy in washing them. The poskim write that one can do laundry in a hotel; see Tzitz Eliezer Responsa, volume 13, article 61, and in a health facility there is also a medical need for conservation of hygiene. Granted, when there is no need for them it is proper to avoid doing laundry the week of Tisha B’Av. See Rabbi Yoav Chananya Oknin and Rabbi Yechiel Moskowitz, ‘Hygiene and Cleanliness in Hospitals as Pikuach Nefesh’, Tchumin, 43 (5783), pages 331-339, that define conservation of hygiene in a hospital as necessary for pikuach nefesh.
  18. The prohibition of bathing during the days before Tisha B’Av is not mentioned in the Mishneh or Talmud, but is a custom appearing in the works of the Rishonim. The Shulchan Aruch (Orach Chaim, 551:16) writes: “there are those who have the custom not to bathe from Rosh Chodesh, and there are those who do not withhold themselves until the week of”, and the Rema writes that the custom is not to bathe even in cold water from Rosh Chodesh onwards, aside from Erev Shabbat where it is customary to be lenient. The accepted custom amongst Sephardim (even though there are those who are stringent, see Ben Ish Chai, Devarim, Year 1:15) is like the second opinion of the Shulchan Aruch, which states that bathing in hot water is prohibited only from the beginning of the week of Tisha B’Av and only bathing in cold water is permitted on Tisha B’Av. See Yabia Omer Responsa, volume 5, article 41; Yechave Daat Responsa, volume 1, article 38. In the Peninei Halacha, Zmanim, chapter 8:21, Rabbi Eliezer Melamud writes that routine cleaning is entirely different nowadays than in the past and bathing for cleanliness is not bathing for pleasure but as a physical need; therefore, even according to Ashkenazim it is permitted to bathe for the purpose of cleanliness in lukewarm water, and one should not be stringent when they smell, for human dignity is exalted. Routine cleaning is important for a sick person in general, especially a person with dementia, therefore even if a person acted differently in the past one should not be stringent (regarding bathing on Tisha B’Av itself, see endnote 11 earlier). Bathing in a pool is prohibited for Ashkenazim, but when there is a medical need – it is permitted. Bathing with no medical purpose is generally prohibited for Ashkenazim, but a person with dementia who swims often and is calmed by this – is permitted to bathe as he usually does.
  19. The Shulchan Aruch (Orach Chaim, 560:3) writes that the Rabbis decreed that one should not play an instrument year-round. Granted the custom is to be lenient according to the opinion of the Rema (ibid.) that prohibits this only at a drinking house, however during Sefirat HaOmer and the Three Weeks one should be stringent, as is written by the Mishneh Brura (article 554:16), that dancing is prohibited during the Three Weeks. This is also written in the Igrot Moshe Responsa, Orach Chaim, volume 1, article 166; ibid., volume 4, article 21:4; Yechave Daat Responsa, volume 6, article 34. Rabbi Ovadiah Yosef (Yechave Daat Responsa, ibid.) brings up the idea of differentiating between music that is heard at drinking houses and music heard on the radio, etc. Granted he is stringent during the Sefira and the Three Weeks even regarding music heard from electronic devices, and so too writes Rav Feinstein (Igrot Moshe Responsa, ibid.) and Rav Waldenberg (Tzitz Eliezer Responsa, volume 15, article 33). Yet Rabbi Zalman Nechemiah Goldberg (Binyan Ariel Responsa, page 66) writes that music that does not bring one to dance but is accompaniment while the person is busy with their life is not prohibited. Rabbi Zalman Nechemiah Goldberg adds that one who listens to music he deems necessary for calming his mind – is permitted to do so during the Three Weeks. Rabbi Ben-Zion Abba Shaul (Or LaTzion Responsa, volume 3, article 25) permits one who suffers from depression to listen to music until Rosh Chodesh Av, even though he prohibits listening to music for tranquility of mind during the Three Weeks, and even permits a person with anxiety to listen on Tisha B’Av. Therefore, a person with dementia, who music helps calm, is permitted to listen to music during the Sefira and the Three Weeks. See I Ask For My Soul, page 140, footnote 15. On Tisha B’Av, in addition to the prohibition of joy there is a prohibition to divert one’s attention from the mourning (Shulchan Aruch, Orach Chaim, 559:5; Mishneh Brura, ibid, subarticles 23 and 41; article 554:43, and many others), however regarding a dementia patient, where distracting them is a health necessity, one may be lenient. This is also the opinion of the poskim that are brought in I Ask For My Soul from their oral accounts (page 188, end of footnote 4), regarding listening to music for one who needs this during the shiva week of mourning.

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