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Is UCC Article 9 the Achilles Heel of Bitcoin?

posted by Bob Lawless

Bitcoin imageLast week, Professor Lynn LoPucki called me up and asked a good question. Why hasn’t Bitcoin fallen apart because of the operation of Article 9 of the Uniform Commercial Code (UCC)? It is a really good question. With Lynn’s permission, I am writing up a blog post about our conversation, but it was Lynn who first identified the issue.

As many readers will know, all 50 states have enacted the UCC with only minor variations. Article 9 governs security interests in personal property – that is, movable and intangible property as opposed to land and buildings. The bank that gave you a car loan has an Article 9 security interest in the automobile serving as collateral for the loan, and the bank providing operating capital for your corner bakery similarly may have an Article 9 security interest in the inventory, equipment, and accounts at the store. Article 9 is one of those laws that only specialists tend to know, but it plays an important role in the flow of commerce.

The bakery example was deliberate given this news about a Durham, NC, bakery accepting bitcoins. I have no idea about the financial circumstances of this particular bakery, but to understand the point assume it has loan from a bank secured by the bakery’s “inventory, goods, equipment, accounts, and general intangibles.” Such an arrangement would not be uncommon and would effectively give the bank an Article 9 security interest in all of the bakery’s property that is not real estate, sometimes referred to as a “blanket lien.”

When a customer pays the bakery with bitcoins, those bitcoins certainly now become part of the bank’s collateral. Given that one bitcoin is worth over $600 today, the customer either has ordered the world’s most expensive donut or technically will have paid with bitcoin subunits. For ease of exposition, let’s just call them “bitcoins.”

The bank’s security interest will attach to the bakery’s bitcoins. When the bakery uses bitcoins to buy flour from a supplier, the bank’s security interest will continue to encumber them. UCC section 9-315(a)(1) provides that the bank’s security interest “continue in collateral notwithstanding . . . disposition thereof unless the security party authorized the disposition free of the security interest. The supplier is not protected by the “buyer in ordinary course” provision of 9-320(a) because that provision only strips security interests from “goods.” 

Further, the security interest will remain with the bitcoins through subsequent transfers (UCC § 9-325). A remote transferee of the bitcoins will take the bitcoins subject to the bank’s security interest. Assuming the bank has taken the easy steps to perfect its security interest, which it almost always will have, the bank can seize the bitcoins as collateral if the bakery’s debt goes unpaid. The possibility of another party with superior property interest in a bitcoin would seem to substantially dampen their utility as a medium of exchange.

Transferees of money take free of a preexisting security interest (UCC § 9-332). Thus, you do not have to worry that the U.S. currency the bakery gives you as change for your transaction is encumbered by a security interest.  That way, money circulates like . . . well, money.

A Bitcoin defender might respond that the UCC should treat bitcoins like money. Regardless of the merits of such a principle in the abstract, the UCC has a definition of money, and it does not appear to include bitcoins. Specifically, “money” is a “medium of exchange currently authorized or adopted by a domestic or foreign government” (UCC § 1-201(b)(24)). To the best of our knowledge bitcoins are not currently authorized or adopted by a domestic or foreign government. One solution to the UCC problem might be to get a domestic or foreign government to authorize bitcoins as a medium of exchange such that they then may receive the UCC treatment for “money.” But that solution will come too late for the thousands of wallets probably already infected with bank liens.  Those liens will remain with the coins to which they attached.

Another out for Bitcoin defenders might be the rules for commingled collateral. For example, if the bakery deposits your payment for donuts in its bank account, the bank account may contain some of the bank’s collateral and some of the bank account may be non-collateral. In these situations, the UCC simply directs that the court is to use “equitable principles” to resolve any disputes that arise. In the context of traditional bank accounts these “equitable principles” are a series of well-established practices. Once in a bitcoin wallet, a free-wheeling interpretation of “equitable principles” might wash the security interest away, but that would be a very untethered free-wheeling.

Even if there some arguments that the security interest does not stay with the bitcoins, the problem is the uncertainty, and the uncertainty would seem to be enough to undo the attractiveness of bitcoins. Either Lynn and I have missed something about how bitcoins work and their interaction with Article 9, or the Bitcoin proponents have failed to notice how Article 9 could unravel the whole enterprise. Up until now, bitcoins have not become a substantial part of mainstream commerce such that the Article 9 problem may have been of little consequence, but if bitcoins are to become part of mainstream commerce, the Article 9 problem must be solved.

Bitcoin image courtesy of Shutterstock.

Comments

The real reason your argument fails is that the courts will find some excuse not to accept it, because it manifestly unfair and clearly not what they law intended. There is functionally no difference between accepting bitcoin and a foreign currency in this case. The excuse the court gives may violate existing precedents and even the outright wording of statutes, but that type of thing happens all the time. Your arguments may be correct, but that will not matter. Maybe the court will find that bitcoin is the currency of some ridiculously small county. Maybe laws will be passed that saying the UCC rules shall not apply this case. Maybe the courts will rule that selling bitcoins is part of the normal course of buisiness.

The lien holder has an obligation to to act when it has reason to believe that the debtor is selling items that it claims a lien on, so others are not defrauded. Unless the bank acts in a timely fashion to stop future sales of bitcoins, by calling in the loan, if necessary, they are agreeing to forfeit all liens on bitcoins. Otherwise the bank would be a party to fraud, since each sale benefits the bank by increasing the assets available to pay back the loan in the short term.

Given what I've seen lenders pursue for collateral and proceeds, it wouldn't surprise me to see them pursuing Bitcoins. If the Bitcoins prove unreachable for the reasons that have been discussed here, I can see lenders successfully arguing that out bakery has engaged in intentional/fraudulent waste of collateral by: 1) exchanging collateral for proceeds that were destroyed by the exchange, or 2) exchanging collateral for proceeds that could not be traced from the exchange.

Interesting debate. It seems to pivot on the definition of "blanket lien" - which everyone seems to assume they know. Here is one:
" A UCC lien means that a lien has been placed at the State on some asset, either tangible or intangible, at a company. "
When the baker buys flour from the supplier, the flour becomes part of the assets encumbered by the lien, leaving the bitcoin unencumbered. It seems to be that simple.

I am wondering if the whole issue being discussed here is partly also a misunderstanding about bitcoin's ontological status. There is no such THING as a bitcoin, just as there is no such THING as a dollar. A dollar is a unit of claim on the Federal Reserve, as I understand it. A bitcoin is a unit of transaction in a global ledger, nothing more. The blanket lien can encumber both tangible and intangible assets but when the bakery exchanges them for flour, they are no longer part of the bakery's assets, tangible or intangible.

David Schubert's post above, seems to come the closest to the way I see it. The way the courts might see it, however, can always be debated!

It might also be worth pointing out that Revenue Canada seems to have a problem with how they are defining bitcoin for tax purposes. They refer to statutes which deal explicitly with "profits" on "securities". By their own definition of "security", Bitcoin cannot be construed as such. It has none of the properties of a security. They have also failed to define which queuing theory they expect to be used for treating bitcoin transactions as inventory flow - LIFO or FIFO, ( I notice GAAP and an international accounting standard use different queuing criteria.)

So perhaps the debate on how bitcoin is to be handled in tax law and collateral law is still very incomplete.

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