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 Legal tender is an outdated and essentially meaningless concept, which is why I am baffled by the continued discussion of it.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

Art and science in Bristol

Well, that was fun. I had the great honour of being invited on to a panel at the Festival of Economics, part of the Bristol Festival of Ideas. I’d never been to the festival before, but I really enjoyed it. It’s a very impressive event, and I’m not just saying that because my publisher, Diane Coyle, founded it. What I found especially impressive, apart from the sheer size of the audiences at the sessions I attended, was that the festival seemed to achieve its goal of bringing serious discussion of important topics to the general public. In our session we have a great audience and they gave us a wide variety of topics to deal with in the Q&A. All in all, an excellent event.

Green Room

I was talking about the future of money with Professor Steve KeenDaniela GaborTatiana Cutts and stand-in chair Romesh Vaitilingam who did a great job moving things along. I’m pleased to say that the session was lively and well-attended.

One of the topics that came up, naturally, was whether Bitcoin was a form of cash or not. Remember that US IRS Ruling about Bitcoins being a commodity, so that traders would have to track the buying and selling price of each individual Bitcoin in order to assess their tax liability? No? Here’s a reminder: “the real lesson from the IRS Bitcoin ruling is that for a currency—or any payment system—to work, its units must be completely fungible”. Now, fungible (from the Latin “to enjoy”) is a great word. One of my favourite words, in fact. In this context (ie, money) it means that all of the tokens are the same and can be substituted one for another. You owe me a pound. It doesn’t matter _which_ pound coin that you give me. Any will do. Any pound coin can substitute for any other pound coin because they are all the same: no-one can distinguish one pound coin from another. This isn’t true of Bitcoins. They are all different, and because they are all different, their history can be tracked through the blockchain. As the MIT Technology Review pointed out, while Bitcoin has a media reputation for providing privacy, analysis of the blockchain suggests it could be surprisingly easy for a law enforcement agency to identify many users of the currency. Actually, recent analysis of the blockchain provides much other interesting information, including the fact that around a quarter to a fifth of the bitcoins already mined are lost for good.

The idea of money that isn’t fungible but that can be tracked, traced and monitored reminded me of Nitipak Samsen’s winning entry in the Consult Hyperion 2011 Future of Money Design Award, an example that I include in my book. I used it to make the general point that if you want to look into the future you need to listen to artists as well as technologist. Anyway, I mentioned the Award on stage and a couple of people came up afterwards to ask more about this particular entry and the competition in general, so if you are one of them and you’d like to learn more, check it out here.

Have you ever wondered where the money in your pocket had come from? Who was the previous owner? Who was the owner before that? Might it be a famous celebrity?…

[From Money Trailer – Future of Money]

It is interesting to me to see these different perspectives (Nitipak’s artistic imagination about the bastard child of Facebook and Bitcoin, and the more technical ideas about fungibility) coming together and, to my mind, again illustrates just why the FOM Design Award became such a popular session at Consult Hyperion’s Tomorrow’s Transactions Forum. We (technologists) need artists to help us to imagine alternative futures.

So. TL:DR…

Bitcoin isn’t cash, because cash is fungible. If we want something to be cash, we need to make it fungible. But do we want cash? I’m always ready to listen to informed views, but right now my general feeling is that the costs outweigh the benefits.

After the euro, the digital euro

Hello. It looks as if the number of currencies in the world is set to go up again. Across the English Channel, satisfaction with supra-national monetary arrangements is waning.

[Marine le Pen] said she could see the EU setting up another currency like the ECU, or European Currency Unit, which the bloc used for internal accounting purposes before the euro was introduced in 1999.

From China Media Warn Trump of ‘Big Sticks’ If He Seeks Trade War

Now, younger readers may be unfamiliar with the ECU, but I’ve written about it more than once on this blog. The idea of restoring the Franc while simultaneously creating a new pan-European currency actually makes sense and I’m rather in favour of it. Which makes we wonder how she got hold of the draft manuscript for my forthcoming book “Before Babylon, Beyond Bitcoin: From Money We Understand to Money That Understands Us” that the good people at the London Publishing Partnership have agreed to publish in June? Oh well, since the cat is out of the bag, I may as well give you a sneak preview…

I remember hearing the Chancellor of the Exchequer talking on the radio during the great financial crisis. He referred to the difficulties of currency union and spoke about the problems in Ireland, Greece, Portugal and Cyprus. He spoke about the problems of maintaining monetary policy across currency unions between economies with different fundamentals. All true. But he didn’t explain why this is different for the UK. How is the insanity of trying to maintain a currency union between Germany, Luxembourg and Greece any different to the insanity of trying to maintain a currency union between England, Wales and Scotland? The fact that they are in a political union does not alter the facts on the ground: they have fundamentally different economies. The Chancellor was arguing that if Scotland opted for independence, it would be impossible to maintain a currency union between England and Scotland. But surely that is true now! The best monetary policy for England is not necessarily the best monetary policy for Scotland, and technology means that what was optimal for commerce at the time of the Napoleonic Wars may no longer best for the modern economy.

If the argument for currency union is only about transaction costs within economic zones, then former Chancellor of the Exchequer John Major set out a potential way forward in 1990 (although the idea dates from 1983) with his alternative to the euro, which was at the time was labelled the “hard ECU”. The ECU was the “European Currency Unit”, a unit of account set using a basket of currencies, that was intended to help international business by minimising foreign exchange fluctuations. Major’s idea for the hard ECU was a fully-fledged currency with a “no devaluation” guarantee (Hasse and Koch 1991). Whereas the ECU reflected the weighted average of inflation rates in the countries concerned, the hard ECU would be linked to the strongest currency (which would have been the Deutschmark, of course). This guarantee would be backed by a commitment from participating central to buy back their own currency or make good exchange losses in the event of devaluations.

Imagine what that kind of parallel currency might look like today. It would be an electronic currency that would never exist in physical form but still be legal tender (put to one side what that means in practice) in all EU member states. Thus, businesses could keep accounts in hard ECUs, even in a post-EU England, and trade them cross-border with minimal transaction costs. Tourists could have hard ECU payment cards that they could use through the Union without penalty and so on. But each state would continue with its own national currency (you would still able use Sterling notes and coins in British shops) and the cost of replacing them would have been saved.

The reason for doing this is to minimise the costs of doing business across Europe while giving each country control over its own currency. But the more general point that I want to make is that the advance of technology gives us new choices in the way that money works. The way that money works now is not a law of physics: it is a set of institutional arrangements that could be changed at any time. Thus, if anything, Ms. le Pen is not being radical at all. Why have nation-state control over money? Why not allow regions to have their own currencies? Why not use Google Money? Or Islamic e-Dinars?

I’m not the only one who thinks this, by the way. Check this out from “The Futurist Magazine” in September 2012, where as part of a compilation of pieces envisioning life in 2100, the article asks if we will still have money in 2100, and speculates on what form it may take if we do:

It is quite likely that we will still have money in 2100, but it may not be issued by governments any longer.

[From European Futures Observatory]

I couldn’t agree more. But if not governments, then who? One of the things I discuss in my book is my “5Cs” model for thinking about future issuers: central banks, commercial banks, companies, cryptography and communities. My good friend Rob Allen from PwC was kind enough to use this model in Sydney this week and, frankly, if people like Rob are taking it seriously then I know I’m on the right track.

It’s time to start thinking about the future of money and not just because I have a book about it coming out in June (did I mention that before?) but because the current industrial age monetary arrangements do not support the post-industrial economy.