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 Legal tender is an outdated and essentially meaningless concept, which is why I am baffled by the continued discussion of it.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.

The campaign against extreme cash is gaining momentum

I’m veery much in favour of getting rid of “extreme cash”. What I mean by this is cash at the extremes of the value range: the small coins and the big notes. In the UK, this means getting rid of the coppers and the largest banknote. So… hurrah! I read that the UK government is considering phasing out 1p and 2p coins, as well as £50 notes, in a bid to tackle tax evasion, money laundering and waste.

Since I’ve been going on about this for more than two decades I’m delighted to see that the government is finally coming around to my way of thinking. I read some newspaper reports that the government is to begin consultations on the subject, but I haven’t heard from them yet and I can’t imagine who else they might consider asking, so I stand ready to answer the nation’s call when as soon as it comes.

The issue of coins is a no-brainer. Back in 2014, I asked whether it is in the interests of the economy as a whole to continue to produce these small coins, saying that “I have no idea why the Royal Mint are messing about wasting our money on making 1p and 2p coins that nobody uses any more. It’s about time we recognised low-value coins for what they are. Scrap metal”. Five years ago I pointed out that in many countries, merchants and consumers alike had simply given up using small coins (such as the one- and two-cent euro coins) whether the mints produced them or not. When Nigel Lawson abolished the old halfpenny in 1984 it had a purchasing power close to the current 2p and there was no contactless. So I fully expect to see the 1p and 2p vanish, and if the government caves to the metals lobby to perpetuate them, which case I will be outraged.

I think the consultation around the £50 note will be more interesting, since there is “a perception among some that £50 notes are used for money laundering, hidden economy activity, and tax evasion”. I’ll say there is. Of the £ billions of notes and coins “in circulation” in the UK, which were in 2016 growing at 5.7% in a year when the economy grew by about 1.8% and the use of cash in retail transactions (retail spending grew 5.2%) was overtaken by the use of electronic payments, a fifth is in the form of £50 notes, which you never see in polite society. As I have discussed exhaustively and on many occasions, only about a quarter of the Bank of England’s notes are used for transactional purposes so these £50 notes must be disproportionately concentrated in the non-transactional (i.e., largely criminal) uses. As everywhere else, high-value banknotes are a major cause for concern. So why not make crime, terrorism, drug dealing, money laundering and bribing corrupt politicians marginally less convenient and marginally more expensive by getting rid of high-value banknotes? It is not only deranged digital money deviants like me who think this is right path to take, by the way. This kind of thinking is beginning to percolate up to the higher echelons of the financial establishment. Mario Draghi, European Central Bank president, told the European Parliament that “we are determined not to make seigniorage a comfort for criminals”. By which he means that the stack of £50 notes underneath the Mafia boss’ pillow are earning interest for the British government. The government is, in a very real sense, living off of the proceeds of crime.

Now, I’m not so stupid that I think that getting rid of the £50 will stop crime! If the government drops the £50, then the criminals will carry on using the $100, €200 and the worst offender, the Swiss Franc. Sooner or later the law-abiding nations of the world will have to institute sanctions against the Swiss. When I last went to Switzerland and I never saw a CHF note or coin: I used cards everywhere, and as far as I could see so did everyone else. Yet Switzerland has a CHF1,000. That’s right: a banknote worth $1,000. And you can spend it, too. Mind you, the Swiss have been cracking down: since 2016, you have had to show ID (how they verify the ID is beyond me) for cash transactions of $100,000 or more (Charles Goodhart, a former Bank of England policy maker, said this limit was so high that it could only be described as a joke).

Am I taking crazy pills? The Bank of England, the Swiss National Bank, the European Central Bank and the Federal Reserve should not be competing to be the currency of choice for Mexican drug lords, Albanian people traffickers and Syrian terrorist groups. So yes, let’s ditch the £50 but let’s also spearhead an international campaign to add morality to the cash issue and reduce the maximum value of the circulating medium of exchange to EUR 50, USD 50 and CHF 50. If the central banks won’t do it, then we should prosecute their governors for conspiracy to support money laundering.