This chapter aims to examine the issue of cryptocurrencies and to develop in particular a reflection on the possibility of counting bitcoins, which represent the best known and most widespread of the existing cryptocurrencies, among the payment instruments suitable to extinguish a pecuniary obligation, recognizing in them the function of means of payment typical of currency. The reflection moves from the crucial question of whether bitcoins are currency, reconstructing first of all the meaning of currency and its function. The research aims to conduct a cross-sectional analysis of the bitcoin system through an argumentation that highlights its potentialities and limitations.
TopThe Definition Of Currency And Its Function
This research explores the topic of crypto currencies and, particularly, this is a consideration on the possibility to include Bitcoin, which represent the most known and widespread existing crypto currency, amongst the payment tools that are suitable to the purpose of extinguishing a pecuniary obligation, recognizing their function of payment means that is typical of currency.
The consideration may not move away from the crucial question: can Bitcoin be considered actual money? (Pernice, 2018). Therefore, before expressing an answer to such question, it is appropriate to recall what we actually intend by “money”.
Both the national and the European law do not provide a definition for money (Ascarelli, 1959; Inzitari, 2011; Chessa, 2016; Galiani, 1751). The guidelines on payment services refer to them as transfers of “funds”, which we do not find a legal definition of in the body of the Law that, in fact, is limited to a list: banknotes, coins, scriptural money, and electronicmoney.
Recalling the financial-economic nature of the definition of money, we find its three typical functions: “unit of account”, “means of payment”, and “store of value”.
The first of the three is definitely the one with the most crucial role, the one of “unit of measurement” (ideal unit) of all the other values.
The concept of “currency” always refers to the function of the unit of account. The financial order, indeed, requires to being measured and the functionality of the unit of measurement is given by its uniformity. The possibility to evaluate the convenience of a purchase or of a payment or of a sale depends on the expression of it in the operator’s unit of measurement. From the uniformity of the criteria and of the measurement, there arises the general acceptance of the payment tools that incorporate the unit of account.
However, the functional definition of currency leaves room, from a legal pointof view, for the community and statist theories. According to the statist formulation, currency is the means of payment that the State recognizes as suitable to the purpose of extinguishing pecuniary obligations: essentially, it is what is provided for by art. 1277 c.c.: “pecuniary debt is extinguished with legal tender of the State at the time of payment and for its book value”.
The second formulation, instead, the community one, considers as currency anything that functions as a means of exchange (Knapp, 1923).For sure, at least in this moment in history, the statist theory is in force.
The suitability of the currency to extinguish pecuniary obligations is the most important statutory trait in the function of the currency within the performance theory.
Beginning from the Seventies and up to recent times there has been a lot of discussion regarding the suitability of scriptural money, that is, the monetary mass represented by bank deposits, to be considered legal currency, equal to the one issued by the State (token coins) or by the central bank (banknotes).
The employment of bills of exchange and paper chequesto regulate pecuniary obligations has highlighted the essential problem that the owner of the title is exposed to: the insolvency risk coming from the debtor. On the contrary, the delivery of token coins or banknotes, being it a transfer of objects, whether metallic or paper ones, which incorporate a value that does not need any other enforceable behavior to be used, is, in the traditional formulation, the right behavior in order to fulfill the pecuniary obligation. This happens because the strength of the State allows it to impose, on its territory, the acceptance of its currency (that is, of the means of payment authorized by it, and expressed in the official unit of account of the State) as a means to extinguish pecuniary obligations, even when expressed in units of account of foreign States, that is legal tender in the territory subject to sovereignty (art. 1278 c.c.).