Are merchants allowed to accept Bitcoin as a means of payment?
With his law firm Fin Law, specialist lawyer Lutz Auffenberg has specialised in the field of fintech and innovative technologies. In particular, blockchain technology and its regulation is the focus of his work. In his guest article, he deals with the question of whether merchants may accept Bitcoin as a means of payment.
Bitcoin has made a name for itself in recent months as a very attractive investment. In the meantime, not only some courageous private investors are investing in the prime of the crypto market, but also numerous institutional investors such as fund Italian Formula managers and investment banks. Even if Bitcoin is currently perceived as the investment asset of the moment, the actual use case of Bitcoin explicitly intended by Satoshi Nakamoto in his white paper on Bitcoin was the creation of an alternative electronic means of payment for the internet that is operated in a decentralised manner and does not require a central settlement authority. This possible use of Bitcoin has not been completely forgotten. Elon Musk, for example, announced immediately after his company Tesla’s much-noticed investment of 1.5 billion US dollars in Bitcoin that Tesla would like to accept Bitcoin as a means of payment for the purchase of Tesla vehicles in the future. But what legal hurdles can traders actually face if they want to accept Bitcoins or comparable cryptocurrencies as a means of payment for their goods or services?
Payment with Bitcoin only possible with the agreement of both merchant and customer
In terms of private law, it should first be noted that Bitcoin is not a state-recognised legal means of payment in Germany. According to the Federal Bank Act, such means are exclusively coins and banknotes denominated in euros, which may always be used to settle monetary debts by legal order. The payment of goods or services with Bitcoin is nevertheless permissible and possible under private law, provided that both parties to a commercial transaction agree that the Bitcoin payment is to have a debt-discharging effect. In contrast, a customer has no possibility to demand of his own accord that a merchant accept payment in Bitcoin instead of in euros. Under civil law, the first prerequisite for effective payment in Bitcoin is therefore that the merchant and the customer come to an effective contractual agreement on the exchange of goods for Bitcoin.
Acceptance of Bitcoin as a means of payment does not require a licence in principle
Merchants who offer their customers the possibility to pay for offered goods or services with Bitcoin do not need prior permission from BaFin. The mere acceptance of Bitcoins as a means of payment does not require a licence because this does not in itself constitute a banking transaction or financial service. However, according to the administrative practice of BaFin, in individual cases the acceptance of Bitcoins as a means of payment may also be associated with the provision of activities requiring a licence if the merchant, in addition to merely accepting Bitcoins from the customer, provides further activities that may in turn qualify as banking transactions or financial services under the German Banking Act.