Legal tender does not mean what you think it means

Since the dawn of Bitcoin, the phrase “legal tender” has been appearing in my Twitter feed. This morning, for example, I was surprised to read that:

 

 

No, it isn’t. Bitcoin isn’t legal tender anywhere and it never will be any more than Avios will be (and I’ve bought more cups of coffee with Avios – one – than I’ve ever bought with Bitcoin). Sorry to be a spoilsport again, but to the very best of my knowledge, Bitcoin is not legal tender in any country. Nor, I would wager, will it ever be. Legal tender is an outdated and essentially meaningless concept, which is why I am baffled by the continued discussion of it.

Who knows what “legal tender” means anyway? Pretty much no-one, in my experience. I remember a story about a schoolboy who was chucked off a Welsh bus for trying to pay with a Scottish banknote. The bus company apologised, saying that “Scottish currency is legal tender” which, of course, it isn’t. Scottish banknotes are not legal tender in England or, for that matter, Wales. Only Bank of England notes are legal tender in England and Wales. On which topic, many thanks to @anshumancrypto for pointing me to this…

 

I hate to spoil the joke but Scottish banknotes are not legal tender anywhere, even in Scotland. In fact, Bank of England banknotes are not legal tender in Scotland either, because Scotland (which has a separate legal system) has no legal tender law although bizarrely (and thanks to Colin Platt for this via Twitter) Royal Mint coins are legal tender in Scotland in thanks to the Coinage Act 1971 (Section 2).

No legal tender notes! Oh my goodness, it must be chaos! 

Actually, it isn’t. I’ve been to Scotland several times and I’ve often seen Scots buying things in shops using banknotes, cards and mobile phones. So not having legal tender laws does not seem to be much of  a barrier to trade. This shows how uninteresting the issue of “legal tender” really is in the modern age and for decades I’ve tended to assume that any article, tweet or LinkedIn comment that talks about making a digital currency legal tender is written by someone who doesn’t really understand either topic.

I do mean decades, by the way. If I cast my mind back to 2006, I can remember writing one of my first ever blog posts about the Snap Cafe in Georgetown, Washington D.C. This particular establishment had attracted my attention because it had decided to stop accepting cash. This is commonplace for forward-looking eateries today, but then it was a revolutionary act. As I reported at the time, the owner said that it had saved her time and money, meant she didn’t have to go to the bank any more and (most importantly, I suspect) didn’t have to trust staff she didn’t know. That point about trust is a recurrent theme in surveys of retailers and cashlessness: even if they perceive cash to be cheaper than electronic payments, cash has a tendency to evaporate. There was discussion around that time as to whether it was legal to do this, since Federal Reserve Notes (ie, greenbacks) are legal tender in the U.S.A. So, people said (incorrectly) that the cafe owner could not refuse them, and some outraged comment asking whether it was legal to ban cash from an establishment ensued.

Some time later I remember an interesting clarification of the subject of legal tender in a useful paper on Payments and the concept of legal tender by Nick McBride, Legal Counsel, Reserve Bank of New Zealand. The paper described something else that happened many years ago when the coins in New Zealand changed. The new coins were introduced on 1st July 2006. For a period of three months, the old coins were circulating in parallel with the new, but some retailers put up signs saying that they wouldn’t accept the old coins. This, presumably, was because they didn’t want the hassle of having to bag them all up and take them to the bank to swap for new coins. So… could retailers refuse to take the old coins in payment even though they were legal tender?

The answer in both cases was that retailers can refuse to accept legal tender.

Wait, what? So what’s the point of legal tender then?

Well, the point of it is that you cannot force a retailer to accept legal tender (or indeed any other form of tender). If, however, you buy something from them and there is no contractual barrier to the use of any form of tender, and you offer legal tender in payment, and they refuse it, then they cannot enforce the debt in court. That’s what legal tender means: it’s about discharging debts. If you incur a debt you can discharge it with legal tender, but you cannot be forced to incur the debt in the first place, if you see what I mean.

Another linked story from many years ago was in Techdirt. Apple were refusing to accept cash for iPhones and insisting on credit cards. They had a link to the relevant U.S. Treasury page to explain the score to outraged citizens. In the U.S. there is no Federal statute mandating that a private business, a person or an organization must accept currency or coins as for payment for goods and/or services. Similarly, in the U.K. where only coins valued 1 pound Sterling and 2 pounds Sterling are legal tender in unlimited amounts you cannot force Apple or anyone else to accept them. They are free to enforce any conditions they like (within the boundaries of the law) with customers. When you buy a coffee from the coffee shop, you are entering in to a private contract. (Our good friend Leo van Hove made a very good presentation about this, called When Will Electronic Money Be Legal Tender? at Consult Hyperion’s 7th annual Forum).

A couple of years later, the European Commission (remember that) put forward its recommendation on legal tender (22nd March 2010). It was, as I recall a banker saying, “strange and undesirable”. So, what is the European perspective? Well, the key points were:

  • Euro notes and coins are legal tender and retailers can only refuse them for reasons of “good faith” (for example, the retailer has no change).
  • Retailers should only refuse high-denomination banknotes in “good faith” (for example, if the value of the note is disproportionate to the purchase)
  • No surcharges should be imposed on cash payments.
  • Banknotes stained by the Intelligent Banknote Neutralisation System (IBNS) remain legal tender but should be returned to national central banks (as they likely come from a robbery).
  • Retailers must accept 1 and 2 eurocent coins in payment.

Sensible policies for a better Eurozone, you might think, but you’d be wrong. The essence of these recommendations was that shops will be forced to accept €100, €200 and €500 euro notes and 1- and 2-euro cent coins. Why? Well, because in many countries the shops don’t want them. In some countries (eg, The Netherlands and Finland) the retailers and the public seem to have, in a decentralised fashion, decided to abandon the 1- and 2-cent coins. They are nothing but a hassle and do nothing to assist commerce. At the other end of the scale, retailers in many countries will not accept high-value notes, partly because they don’t want to make change and partly because they are worried about counterfeiting. After all, if you are a corner shop and you get stuck with a bent €500 note then you are €500 out of pocket: the ECB won’t take your counterfeit note and give you a new one. It’s worth paying a few cents to the bank for a debit payment to avoid that risk.

No $100s, $50s 

Anyway, apart from people like me, Professor van Hove and the European Commission, no-one much cared about legal tender one way or the other for years after the recommendation until Bitcoin came along, at which point the phrase became rather common. Almost everywhere I see, however, it is being misused (as I hope I have demonstrated). By all means please continue to use it, but please do read up on it first. Legal tender does not mean what you think it means.

Identity is money (your money)

As you may know, the United Kingdom leads the world in digital identity infrastructure and is a beacon to the nations when it comes to the use of new technology for identification, authentication and authorisation. Just kidding of course. Here’s the identity that I used at Money 2020 in Amsterdam last week when I was asked to prove who I was at the registration desk:

Money2020 Europe 

Yes, the gold standard for identity cards, the Southern Railway photocard, issued only to qualified commuters after rigorous KYC (you give them a photo and then write your name on the card yourself).

The truth is that we don’t have a digital identity infrastructure (or in fact any other form of identity infrastructure) and the shambolic approach to identity is manifest in a daily litany of frauds, frictions and fantasies (often from the government). Here is an absolutely typical example: a nightclub is issuing its own identity cards since it can no longer rely on any of the other forms of “identification” that are in use. The nightclub manager says that the number of people presenting fake IDs is  crazy, so the nightclub is going to issue its own identity cards with a picture on them. In order to get one of these cards, customers will need to present “two forms of up-to-date official ID” (not entirely sure what this means, since there is no “official ID” in the UK) and then in order to get into the club, customers will need either one of these club cards or a passport or a driving licence.

I’ve written about this at tedious length before, but the core of the issue is that the identification mechanisms that are in use (e.g., driving licences) are impossible to validate and requiring them to be used at all actually leads to more identity fraud because the analogue artefacts employed are stolen, forged and abused in a variety of different ways stop.

Before I continue with this specific example, let me make a general point about how I think these things should work in an always on, connected world. First of all, retailers and other service providers should all have their own virtual identity, or persona, for every customer because they need to be able to communicate and connect with those customers in order to deliver better services and products. In essence, every customer should have a loyalty card. The contents of that card should be unique to each service provider and any compromise of it should not lead to compromise with other service providers. In a digital identity world, this sort of thing is straightforward. You present a virtual identity from an organisation that is acceptable to the nightclub (e.g., a bank) and they send you back another virtual identity that contains things of relevance to the nightclub, such as your customer number and preferences.

In the virtual world, this makes sense because your mobile phone can store millions or billions of loyalty cards. In the “real” world, it will be really annoying to carry around thousands of loyalty cards with you wherever you go, but when those loyalty cards are (essentially) public key certificates then there is no problem.

So let’s go back to the nightclub and see how they might progress on a digital world, by creating a loyalty card based on digital identity infrastructure. Doing things this way has three distinct advantages. First of all, if you are a nightclub then your bar staff may well not be at MI5 levels when it comes to spotting a fake Romanian passport but they might be able to spot a fake version of your nightclub identity. (In practice, of course, they wouldn’t have to because the validity of the card will be checked by their phones). Secondly, by giving every customer loyalty card you are able to interact with them securely (in technical terms you can always send messages encrypted to that persona). Finally, as the nightclub manager himself notes, “we can also ban people and remove the card at our discretion, giving us more control and creating a safer environment”.

On a commercial note. you might wonder why organisations that already spend a lot of money on working out who people are (e.g., banks) don’t take this sunk cost and transform it into a revenue stream. I’ve more than once been told by a bank that there is no business for providing ID as a service to business customers, when clearly this nightclub (to pick just one example) is perfectly prepared to spend money on creating its own identity service when I’m sure the management would much rather that their efforts be directed towards running a nightclub.

Banks should be looking forwards by creating a digital identity infrastructure and then selling products and services based on the infrastructure to, for example, nightclubs. That way, the nightclubs could produce their own branded app (by adding a skin to a generic multi-bank identity app, for example) and pay the bank a pound to testify to the age of the holder rather than waste money having to do it for themselves.