“If you ever see a Swiss banker jump out of the window, jump after him. Surely there is something to gain”
Voltaire
Surely, on several occasions we have heard expressions such as: “they sell me an apartment in Polanco and the payment is in crypto”, “they tell me that I can pay for the car with crypto”; and other similar ones. It seems that you can make purchases and sales with cryptocurrencies, because it is understood that they work like money. Materially, that happens, but technically this is not precisely the case.
It is clear and amply explained in articles previously published by yours truly that cryptocurrencies are not legal tender, however, they can hold a representation of value and be used as means of payment. The above follows from the exclusion of what is stipulated in our Monetary Law, which in its Art. 1 expressly states that the “Peso” is the legal currency in our country, without prejudice to the fact that it also recognizes the value of other national currencies. under the concept of “Currency”. Furthermore, the Law to Regulate Financial Technology Institutions, popularly known as the Fintech Law, explicitly establishes in its Art. 30 what is understood by “virtual asset” and in Art. 34, what must, where appropriate, warn the public with whom they transact, emphasizing in section I that “the virtual asset is not legal tender, and is not backed by the Federal Government or the Bank of Mexico.” It should be noted that, as is the case with exchange operations (currency), in the case of virtual assets, the law itself uses the verb “buy”, which obviously does not apply when it comes to national currency; You do not go to the bank branch or ATM to “buy” pesos, you withdraw them because they are yours and they are legal tender upon deposit.
If we go to practical cases, in these sales of movable or immovable property, the main act itself is precisely the sale, but it turns out that this is a figure that is regulated in commercial legislation (Commercial Code Art. 371, 635, 1,050 and other relatives) that is relevant even in the buying and selling of the same cryptocurrencies that people do with the Exchanges; and in the Civil Codes of the respective federal entities. The assumption of the CDMX is in Art. 2,248 “There will be a purchase and sale when one of the contracting parties is obliged to transfer ownership of a thing or a right, and the other in turn is obliged to pay a certain price for them. and in money.” and the same ordinance mandates that when said payment is made through the delivery of one part in money and the other in kind (things), if the percentage of payment of money is less than the value of the things delivered, that contract is no longer of sale, it is an Exchange; which is commercially and civilly, when the ownership of two goods or things is exchanged (Art. 2,250 CCCDMX). Additionally, the buying and selling of cryptocurrencies in itself is an act of commerce and cryptoassets are commercial goods.
In other words, this new 21st century purchase and sale is, for all purposes, an example of a simple, simple and very ancient barter. I give you some goods in exchange for your house or your car, because cryptos, not being currency or currency (a different case would be a sale in euros or dollars), have the same legal nature as paintings, another vehicle or jewelry, with The difference is that these physical things are tangible and non-fungible, while cryptos are normally intangible and fungible (with the exception of NFTs). It is paradoxical but easy to understand, since, with sophisticated technology, property transfers are being made again just as they were before humanity invented money, that is, things are being exchanged between people.
Curiously, since they are not sales but exchanges, they are subject to other rules that do not apply when payment is made with money, and among them are those of reciprocal liability for eviction, hidden defects, etc., plus special tax treatments. that correspond, because ultimately the assets that both parties are delivered would have to be fiscally valued to determine applicable taxes (federal and local), costs, profits, taxable bases and of course, tax amounts to pay.
Finally, dation in payment is one of the conventional forms of compliance with obligations and, unlike the exchange, is proposed after the conclusion of the contract (usually due to an issue of illiquidity), but the “dation in payment” ” sounded good for the title of this article. In an ordinary sale, if the buyer cannot cover the agreed price and if the seller accepts it, the former could be released from his obligation by giving land, watches, cows or crypto assets in payment.
X: @LBartoliniE
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