Means of payment
In payment transactions, transferable , uniform and countable value carriers are considered means of payment , which serve as consideration ( e.g. in the case of a purchase contract ) or as a transfer service (e.g. in the case of a gift ).
Either money or money-like claims ( money surrogates ) come into question as value carriers . Cash used in modern payment the cash pledged debtor to its creditors from contract or law resulting monetary obligation to legally pay off . In Germany, the law only allows cash to be paid in cash . According to traditional understanding, it is the performance owed by the debtor and therefore leads to the fulfillment of the debt through the transfer of ownership of the cash. The debtor is only allowed to repay a monetary debt with other means of payment than the legal tender (e.g. payment in foreign currency or by credit card ) if this has been agreed in advance between the parties within the scope of freedom of contract . Due to the widespread use of current accounts with the option of cashless payment transactions , a cash payment can also be excluded as a fulfillment service in exceptional cases. This is done contractually in employment and rental contracts ( wages / salaries and rents are largely paid cashless) and by law, for example in (3) sentence 1 AO , (1) BAföG , (1) sentence 2 ZVG .
Historically, precious metals such as gold or silver , but also objects such as shells, were used as a means of payment. Money as a means of payment originally consisted only of coins . Gold, silver and copper coins were already used as a means of payment in the Roman Empire . In 794 the Roman pound was replaced by the Karl pound (408 g). From this pound 240 denarii were minted at 1.7 g, of which 12 were calculated on one shilling (solidus) and 20 shillings on the pound. This method of calculation was used in Great Britain until February 15, 1971.
On November 30, 1656, the first European central bank was founded in Sweden as " Stockholms Banco ", which began issuing banknotes in Europe for the first time in July 1661 . Like other privately organized banks with banknote privileges , it was called a slip bank . Since its nationalization in 1668 it has been the forerunner of today's Swedish Sveriges Riksbank . The first German card bank was founded by Count von Reuss in Berlin on June 17, 1765 as the Royal Bank and granted note privilege on October 29, 1766. Compared to gold or silver coins, banknotes did not have any particular material value, which is why such banks were disregarded as "note banks". Notes were considered a "paper plague", Goethe mocked them as a "diabolical thought-birth".
In Germany, the first " Bancoicket " appeared in Cologne, issued by the local "Banco di gyro dʼAffrancatione", which was founded on March 2, 1705 on the proposal of the Palatinate Elector Johann Wilhelm II . As early as 1713 the Reich Chamber of Commerce ruled that state “banco notes” , which in this case had been issued by the Electoral Palatinate Bank in Cologne, had to be accepted as a means of payment.
The Bank of England first introduced legal tender on the basis of the Bank of England Act of July 6, 1833. Notes had to be accepted for amounts over £ 5 and redeemed by the Bank of England. Since 1825 there has been a scientific dispute in England between the Currency School and the Banking School over the question of whether banknotes represent money or whether they should be viewed as a means of credit such as checks or bills of exchange. The supporters of the currency theory referred to a work by David Ricardo from 1809, for which the wealth of currency in circulation devalued them and a full gold cover was required. For the Banking School , banknotes were loan payment instruments, which is why gold coverage of 1/3 was sufficient. The Bank of England's obligation to redeem it was in danger during the banking crisis of 1839 because it could only meet this obligation through foreign loans. In France, the banknote was not made legal tender until 1870, before the obligation to redeem gold was restored in 1873. In Austria, the Privileged Oesterreichische Nationalbank , founded on June 1, 1816, was given the sole right to introduce banknotes as legal tender.
Types of means of payment
A general distinction is made between legal and other means of payment.
Legal tender is the banknotes and coins of a state that are required by law for the legally effective fulfillment of obligations and are circulating in large quantities. The state "had through its legislation [...] in hand to stipulate what had to be taken as a means of payment in exchange transactions [...] with which everyone had to be satisfied when he was paid in it." With legal tender the state uses its sovereign means Task to determine the currency of the state within the monetary constitution , to organize it and to prescribe it as a means of payment. The resulting obligation to accept for creditors can be unlimited (for banknotes) or administratively restricted (in most countries there is a limited acceptance requirement for coins).
For example, TFEU stipulates that the European Central Bank has the exclusive right to authorize the issuance of euro banknotes within the EU and, together with the national central banks, is authorized to issue these banknotes. The delegation of the issuing right to the Deutsche Bundesbank can be found in (1) sentence 2 BBankG . The issuing of euro coins is the responsibility of the member states (Art. 128 (2) TFEU). The issued Euro banknotes are the only unlimited legal tender and are reported on the liabilities side of the central bank's balance sheet. This shows that banknotes are a requirement of the central banking system.(1)
For the obligee in all states, the legal tender is associated with an obligation to accept (one also speaks of an obligation to accept or a debt-discharging obligation to accept). He has to accept euro banknotes across the EU as fulfillment of his monetary claim, since "the banknotes issued by the European Central Bank and the national central banks are the only banknotes that are legal tender in the Union".
In Germany, "Euro-denominated banknotes are the only unrestricted legal tender" according to BBankG . In the case of euro and cent coins, the obligation to accept is "limited" to a maximum of 50 coins. According to Art. 11 Clause 3 of this EC Regulation “with the exception of the issuing authority (...) nobody is obliged to accept more than fifty coins for a single payment”.(1) sentence 2
Even if the obligation to accept cash applies in principle, cash payment can be excluded in private law contracts, as private autonomy generally applies to contracts. For public bodies, on the other hand, the obligation to accept applies on the basis of (Paragraph 1, Sentence 2), unless it has been repealed by a federal regulation.
Euro commemorative coins must also only be accepted to a limited extent in accordance with Paragraph 1 of the Coin Act . For payments that only consist of commemorative coins, amounts up to 200 euros must be accepted; If payment is made both in euro coins and in German euro commemorative coins, nobody is obliged to accept more than 50 coins. With the exception of 2-euro coins, commemorative coins denominated in euros are only legal tender in the issuing countries.
There are similar regulations on legal tender in all other countries. The US dollar is designated as the legal tender for all debts, government fees and taxes in Title 31 Section 5112 of the United States Code . Some silver and gold coins (such as the American Gold Eagle ) are legal tender in the USA, the Goldvreneli in Switzerland and the Krugerrand in South Africa ; However, since the price of these investment coins is well above the imprinted face value , they are actually not used as a means of payment, but for investment. The high price depends on the one hand on the high gold content (and thus on the gold price) and on the other hand on the relative scarcity of these gold coins. In the US state of Utah , gold and silver have also been legal tender in addition to the US dollar since March 2011 .
According to Article 2 of the Federal Act on Currency and Means of Payment (WZG) , the Swiss franc is the legal tender in Switzerland, as is sight deposits denominated in francs at the Swiss National Bank . While there is no limit to the acceptance of Swiss franc banknotes, the obligation to accept coins is limited to 100 (Art. 3 WZG).
The banknotes issued by the Bank of England are legal tender only in England and Wales under Chapter 12 Section 1 (2) of the Currency and Bank Notes Act of February 10, 1954 . In Scotland there is no pro forma legal tender in paper form. The three local Scottish commercial banks (Bank of Scotland, Clydesdale Bank, Royal Bank of Scotland) own and use the right to issue their own banknotes denominated in British pounds.
In Hong Kong , banknotes ( Hong Kong dollars ) have not been issued by the central bank since 1872 (there are formally none), but by three commercial banks ( Hong Kong and Shanghai Banking Corporation - HSBC, Standard Chartered Bank ) and (since 1994) the Bank of China , which is unusual and unique in the world. Since the Currency Ordinance of November 9, 1935, these banks received from the Government Authority Hong Kong Monetary Authority ((HKMA) to "banks legal tender" English legal tender banks declared). The banknotes can differ in design and color depending on their face value, as each of the three banks can choose its own design. The HKMA is thus the actual (but not the legal) central bank in Hong Kong, which has delegated the banknote privilege to three commercial banks.
Other means of payment
Cash is the only legal tender worldwide. The other means of payment do not meet the requirements for this. In particular, a creditor can accept them in return, but there is no obligation to accept.
The other means of payment include the disposal of book money in cashless payment transactions by transfer , check , bill of exchange or direct debit . More money substitutes are credit card , debit card or traveler's checks , by extension tokens , stamps , vouchers , promissory notes or letters of credit , provided that they are an independent currency in circulation. It is therefore a prerequisite that these papers certifying a claim to money are in circulation as a means of payment. The circulation begins with the issuing contract and the associated handover of the certificate from the issuer to the next owner .
In Germany, under fulfillment law , they are classified as performance in lieu of performance (transfer) or performance on account of performance (the other means of payment). Varieties and foreign exchange , foreign cash. There are also near-money stamps, such as postage stamps .
The digital revolution creates new possibilities for payment methods. After the global economic crisis in 2007 , the first crypto currency Bitcoin was introduced, a virtual means of payment, which is transferred from the debtor to the payee through direct peer-to-peer communication over the Internet .
In Germany Bitcoin neither cash nor electronic money , currency or varieties , but is it after finding the BaFin a unit of account ( English unit of account ), which can be used in "multilateral netting circles" and thus financial instrument within the meaning of para. 11 no. 7 KWG .
Payment behavior in Germany
In Germany, most payments are made in cash. In 2011, private individuals used cash for 53.1% (2008: 57.9%) of their spending on goods and services when shopping. This means that this payment instrument remains the most widely used form of payment. When it comes to cashless payment instruments, the Girocard (the former EC card ) is the favorite, clearly ahead of the credit card . It is used for 28.4% (25.5%) of total expenditure, the share of transfers was 8.2% (8.9%), followed by credit cards, the share of which has doubled to 7.4% ( 3.6%). Other payment instruments play practically no role. According to the study, the threshold amount at which the consumer switches from cash to cashless payment is between € 20 and € 50, from € 100 the girocard predominates.
The local currency is not the only means of payment in all countries. For example, in Central America there is the parallel currency, the US dollar, and in the Balkans at the end of the 20th / beginning of the 21st century, the D-Mark or the euro was used as the only regular means of payment (e.g. Montenegro ). Before the introduction of the euro, the D-Mark was accepted as a means of payment in business transactions in some European countries. In these weak currency countries there were and still are official legal tender, but US dollars, DM or euros have in fact been recognized as a second means of payment.
- BGH NJW 1986, 875, 876
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- BGH, judgment of May 20, 2010 - Xa ZR 68/09. May 20, 2010, accessed on January 16, 2020 : "In the matter, Art. 17 Clause 1 of the Conditions of Carriage, according to which cash payments are excluded, cannot be objected to."
- Cornell University Law School, USC 31 § 5112
- the Krugerrand does not have an imprinted face value
- inflation: Utah declares gold the official currency , Spiegel online from March 21, 2011
- Federal Act on Currency and Means of Payment (WZG)
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