„POWER of DISPOSAL“ in Der-Bank-Blog

Cash, book money and free availability

by JOCHEN WERNE published in DER BANK BLOG (30 October 2020) – For the original version in German please follow this LINK – English version translated by Deepl.com

“Disposal power” or “authority to dispose” are legal terms which are of great importance in the discussions on cash and book money. It also concerns the freedom of choice of citizens.
The German language today is much more extensive than the 100,000 words used by Goethe in his time. We hardly use many of these words, which are so characteristic of our language, despite their meaning. Perhaps some readers feel the same way about the word “Verfügungsmacht” as I did when I consciously read it for the first time in a quotation from the former president of the Federal Constitutional Court, Prof. Dr. Udo Di Fabio. And perhaps it is like with many things in life that one only realises the deeper meaning at the moment when one deals with it in more detail.
In our modern times, hardly anyone will visit the university library to quickly get to grips with a topic. Instead, people google the library to get an overview. And while less than 20 years ago we would have found our first little research happiness about the term “power of disposal” or also “authority to dispose of property” in the library of the law faculty, Internet research reveals in seconds a glance at a litany of legal forums.


Definition of power of disposal
What is striking here is that the focus is not on the definition of control, but that the topic of regaining control dominates the first page on Google. Inevitably, this reminds me of my first visit to the Munich Google office many years ago. Almost rapturously in his remarks about the power of the algorithm, a sales employee of the world’s most powerful search engine asked the group if we knew where on the Internet they hid a body. With a glance into his head-shaking auditorium, he solved the riddle with a smile and said: “On the second page of Google search. Inevitably, of course, one then asks oneself – albeit only rhetorically – whether the Google business model works in particular because many have simply relinquished control over their data.
The power of disposal or also power of disposition is defined as the “legal power to dispose of an object”. Which is banal, meaning that I should also have the power of disposal over what belongs to me – in other words, what is legally my property. However, the success of my own research on the first Google page suggests one thing above all else to the reader: that the power to dispose of property can be lost. For example, also of your own money? In order to answer this question, one should basically distinguish between cash and book money.


Cash, book money and the power of disposal
With cash, I have direct unlimited physical control over my money in the form of coins or notes. This power of disposal can of course be lost if I am robbed or simply lose my wallet. Without entering into the legal depths of “normal” debt and the right to dispose of money, citizens have in principle all the means guaranteed by the state at their disposal to recover their property.
The same applies to book money, if, for example, money is lost through credit card fraud when shopping online. The limits of non-physical power of disposal would, however, quickly become apparent if a bank went bankrupt and the money parked in the account in excess of the deposit guarantee was no longer available.
Cash, book money and free availability
It is utopian and not at all sensible to hoard all one’s “money” as cash. But it is certainly important to make clear what it means to no longer have the freedom of choice between cash and book money and thus to completely give up one’s right to physical availability of money.
In the concluding sentence of his speech at the 2018 Cash Symposium of the Deutsche Bundesbank, Udo Di Fabio underlined what is probably the most important point in the current discussion surrounding this election. He said that it should not be “disregarded” in principle that every citizen should be able to freely dispose of his money – his “exchangeable assets”. He further added that this was particularly true when “financial privacy” was considered a legal requirement.
This means that a society whose entire assets would only be managed digitally in book money could also only exercise limited individual power of disposal over its money and would have to face the question “whether the state, through its central bank, would be entitled to carry out a controlled devaluation through negative interest rates, booking discounts or fees on credit balances”. Prof. Di Fabio further points out that this would then not only be an encroachment on ownership but, as a result, possibly also the imposition of a special levy, which is only permitted under strict conditions in the German legal system.


Conflicts of interest and trust
It is easy to see that this issue can give rise to considerable conflicts of interest in the triangular relationship between citizens (- how can I protect and increase my money), government (- how can public debt be reduced) and central bank (- how can economic and monetary stability be ensured). This is particularly true in the light of the continuing challenges posed by the Corona pandemic.
It is thanks to the excellent work of the Deutsche Bundesbank since the Federal Republic of Germany came into existence and the confidence it has built up in our currency that the confidence of the public in both cash and book money is so high in this country.
Freedom of choice between cash and book money
Of course, another decisive aspect of this trust is the freedom of choice between cash and book money, which the Bundesbank also advocates. This freedom of choice also offers banks the opportunity to deal flexibly with the funds. For example, instead of charging 100 percent negative interest on book money to citizens or companies, banks could also physically hold it or have it held in safekeeping as cash.
Since it is not part of a bank’s core competence to operate high-security systems and one certainly does not want to expose one’s own employees to the risk of a robbery or the blackmailing abduction of a family member, there is of course the possibility of outsourcing such a service in a LCR-compatible and MaRisk-compliant manner. A service that supports the customer in parts of his liquidity management and does not make it difficult for him to possibly maintain his own safe in his own four walls and without a security concept and thus endanger himself and his family.
“Money is coined freedom”
In his prose work “Records from a House of the Dead”, the Russian writer Fyodor Mikhailovich Dostoevsky describes his own experiences in Siberian captivity and formulates the later much quoted sentence: “Money is coined freedom”, thereby describing the vital relevance of a free exchange of goods in an unfree environment – and this through coined cash money. For the young Dostoyevsky, the changeover to a pure book money system in Siberian prison would have meant the withdrawal of his individual power of disposal over money, so that in reverse he would no longer have any assets which he could have used for the exchange of goods and other things. He describes this situation in the quintessence as follows: The suffering of prisoners who do not have money is “10 times greater”.
It is therefore reasonable to assume that the intellectual, serious discussions about the freedom of choice between cash and book money and the freedom of citizens in a constitutional state, which is freely consolidated in its constitution, would please Dostoevsky with his experiences in an unfree society. And it is characteristic of our open society that, especially in a crisis like the present one, we are conducting and continuing the debate on freedom of choice and power of disposal at this level, and not only with regard to our money.

Libra and the Dilemma of Trust

A crypto currency challenges technology, regulation and humans.

Author: Jochen Werne

“Money is perhaps the most concentrated and acute form and expression of trust in the social-state order.”

Georg Simmel


In this clarity, the German philosopher and sociologist Georg Simmel, born in 1858, formulated the value of a currency in his work “Philosophy of Money”. This clear and comprehensible insight also provides a simple basis for understanding why, for example, states rely on the independence of their central banks. And just as simply the question arises, which order do you trust when it comes to crypto currency?

Almost 4,000 of these currencies now exist worldwide. After Bitcoin, Ether, XRP, Litecoin and Co., Libra now wants to establish itself as a future heavyweight in the market – and with a noble goal. Libra is to become the cashless payment option “for mankind” and make international payment easier.

Libra Coin – the currency of the future?

No crypto currency received comparable media attention, triggered only by the announcement of the project. And the emotionality and toughness with which the discussion is already being conducted shows how seriously the topic is being taken. It’s about reputation, influence, control, responsibility and only in the last instance about technology. Central banks and government bodies are sceptical about the “currency of the future” on a broad basis, even though the advancing globalization could argue for a single currency in the long run. A currency that supports a consistent free exchange of goods and services. Also under discussion is whether Libra Coin could be the means of payment for the approximately 1.7 billion people who have no access to banking services and whether the familiarity and the large target group of Facebook, combined with the announced low transaction costs, could make it possible to reach billions of people worldwide.

Challenges at all levels

Technically, not all hurdles have been cleared yet: In order to make a stable coin possible, it is necessary to find the right technology. It is precisely this stability that is supposed to distinguish Libra Coin from other crypto currencies and thus also make it suitable for skeptical end consumers. Members such as Mastercard, Paypal or Ebay should also provide the Libra Association with their names and brand promises additional confidence for the end consumer. But already today the alliance is not as stable as the founding members had hoped and the exits of Mastercard, Visa and Paypal weakens the consortium.

The Libra Association has repeatedly emphasized that it wants to comply with all regulatory aspects, but there are voices at the political and banking levels that are extremely sceptical about the project. The new payment system raises many questions in monetary and legal terms. Central banks and supervisors want to keep an eye on the influence of the potentially new currency and usually share the view that whoever acts like a bank must be treated like a bank. In other words, comprehensive requirements must be met and regulations observed – especially at the international level. This is difficult because current regulations are designed for the classical financial system, with which the Libra system has largely no points of contact. The aim is to keep total regulatory influence and not to allow any possible loopholes.

Despite its American origin, the Libra Coin is to be administered from Geneva by the Libra Association. The idea here is to be regulated by the Swiss Financial Market Supervisory Authority FINMA. Although Facebook has paid a lot of attention to the underlying technology, the legal issues still need to be clarified. Especially with regard to money laundering, consumer protection and possible misuse of the currency for illegal activities. Within the Association, there will be no special treatment for the founder Facebook, but equal voting rights for all members.

Acceptance and European values

With regard to Germany, it can be said that its citizens are within the international average as far as their affinity for digital is concerned. However, a historical-cutlurell caution can certainly be observed with regard to the topic of money, which certainly explains the well-known love of cash. A more pronounced European awareness of data protection with the General Data Protection Regulation (GDPR) makes many people, especially in Germany, sceptical about the subject. The fact that Libra was launched by Facebook is hardly a confidence booster after the Cambridge Analytica scandal. The fear of the transparent customer meets with security concerns about one’s own savings. Every German knows the quote: “Friendship ends with money” and thus new things are always put test. Culturally different in Sweden, where sometimes it’s only possible to pay by card. The same in China, where WeChat Pay and Alipay are no longer just a trend.

As always, changes are taking place step by step. It remains to be seen whether Libra Coin in its current form has future prospects. In any case, any change can only work if it is accepted and used by the end consumer despite all skepticism.

And this stands and falls – also in the digital world – with what Georg Simmel already put in the centre in terms of money in the 19th century: CONFIDENCE.

A more in-depth look at money and value can be found in the article “Coined Liberty 2.0“.

Following the keynote on “Libra in Retail?” at the Payment Summit 2019 in Hamburg, the article “Libra and the Dilemma of Trust” has been published to give participants further insides on the topic.