The Rothbardians might argue as follows: an institution taking money from its clients and contractually obliged to return to them exactly what they are rightly entitled to is fraudulent when such an institution could never honour all the clients’ claims at one time, if all or even a large number required some or all of the money they are entitled to. If so, they have destroyed the basis of the insurance industry, as has been pointed out by Gene Callahan here (“The ‘Immorality’ of Fractional Reserve Banking Revisited,” May 23, 2009).
The argument that FRB is fraudulent merely because there are certain possible circumstances when the bank cannot fulfil its promise to pay all its clients on demand is utterly unconvincing.
First, virtually all business investment and insurance industries could be regarded as inherently unstable, like FRB, because the future is uncertain. But the insurance industry – just like FRB – can be operated profitably over long periods and is stable. When some unforeseen event happens like a massive natural disaster, the insurance companies could be overwhelmed by claims and collapse, because they cannot pay. If all or a very large number of the policy-holders of an insurance company suddenly needed insurance payments over a brief period, the company might not be able to honour all its claims or find a credit line to allow it to do so. But that is not an even remotely serious argument against insurance, because all business activity involves risk and uncertainty, and both clients of a business and the business itself can never escape uncertainty and the possibility that the business’s contracts might not be honoured.
In the same way, FRB might be stable over long periods. But, when some unforeseen event happens (a collapse in export demand, rumours about some bank, a change in subjective business expectations), the FRB bank might be overwhelmed by a bank run and collapse, because it cannot pay. The issue is whether it can meet demand from its depositors out of reserves, sale of financial assets and loans from other banks, without a liquidity crisis. Many FR banks are perfectly capable of doing that in a crisis, while others are not. That some banks cannot honour all their claims under certain unusual circumstances is not a serious moral argument against FRB. If it were, then all insurance industries would be unacceptable on moral grounds as well.
The anti-FRB libertarians will no doubt then fall back on the argument that insurance is not fraudulent because when you pay premiums that money becomes the property of the insurance company, and is not money retained as your property, whereas in FRB you do retain ownership of your demand deposit money. But that shows the most contemptible ignorance of the nature of FRB.
If you put your money into a mere holding warehouse, then the owners or managers of the warehouse have no property rights with respect to your money stored there (such money is legally known as a depositum, which means “something given or entrusted to another for safe-keeping”). The identical deposit must be returned to the owner or, in legal terms, it must be returned in specie (“in its own form”).
But, when a modern fractional reserve bank takes money for a new deposit, this is actually a personal loan to the bank, which is why the bank can pay interest for it. The money in the deposit becomes the property of the bank. The money is a loan, or legally a mutuum, which means “a contract under which a thing is lent which is to be consumed and therefore is to be returned in kind” (the modern sense of the English word “deposit” is thus misleading when it refers to money in fractional reserve banking). The depositor who lends the money gets a credit (or IOU) from the bank and a promise to pay interest: “the very essence of banking is to receive money as a [m]utuum” (MacLeod 1902: 318). The money has been “sold” to the bank as a mutuum and is to be returned in genere (“in general form”), which means you do not necessarily get the same money back, but just an equivalent amount with interest. In demand deposits, you have lost your absolute property rights to the money when you lent it to the bank, and instead have entered into a contract with the bank to allow them to use it, even though they are obliged to return to you on demand money to the same amount in whole or in part from their other reserves, other unused deposits, sale of financial assets or lending from other banks (MacLeod 1902: 324). This can also be expressed in this way:
“General deposits are obligations of the bank to pay money. They may be payable on demand or at a stated time in the future. The great bulk of commercial bank deposits are payable on demand. They create between the bank and the customer the relation of debtor and creditor, the title to the deposit passing to the bank, while the depositor acquires a right to receive a stated sum of money” (Johnson 1911: 117).It is certainly true that many members of the public may be ignorant of these facts above. Yet if you have failed to read your fractional reserve bank contract, whose fault is that? As a client, you ought to understand the contract that you sign. The solution to the problem of modern people not understanding the nature of fractional reserve banking is simply legislation to make banks explicitly explain to potential customers how FRB works. Specifying to clients that the property rights to the money had passed to the bank and in return an IOU or credit had been granted to the depositor, that the bank lends your money out, and that it will return not the same money but other money from its reserves will solve the moral problem of clients not understanding the nature of FRB. Under these circumstances, FRB is not fraud. It is a free contract.
The Rothbardians like to tout themselves as the most pure, heroic defenders of free markets. They are not. The anti-FRB Rothbardians are coercive, anti-freedom violators of private liberty and free contract in their opposition to FRB.
Appendix 1: Fractional Reserve Banking under Roman Law
I’ll quickly deal with the status of FRB in ancient Rome here, because when discussing the subject you frequently find anti-FRB libertarians invoking the work of Huerta de Soto (2006), and arguing that FRB was illegal or considered immoral at Rome.
In fact, Roman law appears to have allowed FRB under the mutuum contract, a real contract under which a fungible good like money was lent to a bank and ownership of the money passed to the bank. The bank was required to return an equivalent amount of money, after a certain time or on demand.
In Roman law, there were a number of types of real contract (contracts re), as follows:
(1) mutuum (loan for consumption);In Roman law, there was also a type of contract called the depositum irregulare which, when involving money, allowed the transferral of ownership (dominium) of the money. Because money can be regarded as representing a certain value, what is deposited is a quantity of a thing (quantitas) and not an individual thing itself (corpus). The depositor thus receives back the same quantity (tantundem) of money, not the same money itself (Zimmermann 1990: 215–216).
(2) commodatum (loan for use);
(3) pignus (pledge), and
(4) depositum or depositum regulare (bailment for safe keeping).
In the time of the Roman jurists Ulpian/Gnaeus Domitius Annius Ulpianus (c. 170–223 AD) and Papinian/Aemilius Papinianus (142–212 AD), however, it appears that the depositum irregulare was merely considered to be a type of mutuum, and it may well be that the whole legal concept of depositum irregulare is a development of later legal theorists, unknown to jurists of the second or third century AD (Oudshoorn 2007: 135–136; cf. Adams 1962; for the specialist literature, see Seidl 1951; Geiger 1961; Litewski 1974; and Gordon 1982). Therefore the mutuum was the legal framework and concept under which fractional reserve banking was conducted in ancient Rome (Zimmermann 1990: 218). Whether the mutuum was a time deposit or a demand deposit depended on the type of contract between the two parties, and there is no reason to think that fractional reserve banking was held as either immoral or illegal (for how Roman law influenced Medieval law on banking, see Dotson 2004: 89–92).
The evidence for the existence of FRB in the Roman Republic and Roman Empire is overwhelming (Harris 2006: 11; Harris 2011: 236). There is not one shred of evidence that it was regarded as immoral or prosecuted as a crime.
But let us suppose, for the sake of argument, that in fact the Romans did regard FRB as immoral. Even if correct, that would be a red herring and an informal fallacy called the appeal to tradition/argumentum ad antiquitatem, irrelevant to the question whether in the modern world FRB is immoral and fraudulent. The Romans, for example, had sumptuary laws to prohibit the consumption of certain luxury goods, supposedly to stop the spread of immoral luxury and preventing the moral and physical health of Romans from degenerating. Is that a remotely convincing argument by itself for prohibiting consumption of certain luxury goods today? Not in the least.
Adams, B. 1962. “Haben die Römer depositum irregulare und Darlehen unterschieden,” Studia et documenta historiae et iuris 28: 360–371.
Dotson, John E. 2004. “Banks and Banking,” in C. Kleinhenz (ed.), Medieval Italy: An Encyclopedia. Vol. 1, A to K, Routledge, London. 89–92.
Geiger K. 1961. Das depositum irregulare als Kreditgeschäft, Freiburg.
Gordon W. M. 1982. “Observations on depositum irregulare, III,” in Studi in onore di Arnaldo Biscardi (vol. 3), Ed. Cisalpino-La Goliardica, Milan. 363–372.
Harris, W. V. 2006. “A Revisionist View of Roman Money,” Journal of Roman Studies 96: 1–24.
Harris, W. V. 2011. Rome’s Imperial Economy. Twelve Essays, Oxford University Press, Oxford.
Huerta de Soto, J. 2006. Money, Bank Credit and Economic Cycles (trans. M. A. Stroup), Ludwig von Mises Institute, Auburn, Ala.
Johnson, J. F. 1911. Banking Principles, Alexander Hamilton Institute, New York.
Litewski W. 1974. “Le dépôt irrégulier,” Revue internationale des droits de l’Antiquité 21: 215–262.
MacLeod, H. D. 1902. Theory and Practice of Banking (6th edn), Longmans, Green, Reader, & Dyer, London.
Seidl, E. 1951. “Der Eigentumsübergang beim Darlehen und Depositum irregular,” in Festschrift für F. Schulz, Böhlau, Weimar. 373–379.
Selgin, G. 2000. “Should We Let Banks Create Money?” Independent Review 5.1: 93–100.
Selgin, G. A., and White L. H. 1996. “In Defense of Fiduciary Media – or, We are Not Devo(lutionists), We are Misesians!,” Review of Austrian Economics 9.2: 83–107.
Oudshoorn, J. G. 2007. The Relationship Between Roman and Local Law in the Babatha and Salome Komaise Archives: General Analysis and Three Case Studies on Law of Succession, Guardianship and Marriage, Brill, Leiden and Boston.
Zimmermann, R. 1990. The Law of Obligations: Roman Foundations of the Civilian Tradition, Juta & Co, Cape Town.