ABSTRACT
This paper argues that cryptocurrency, including cryptocurrencies such as Bitcoin, should be understood as qualified property. We build up support for this claim in three stages: first, we outline the diversity of cryptocurrencies, a diversity which is underappreciated in the current literature. We then outline the importance of theoretical presuppositions which operate in the ‘cryptocurrencies as property’ debate. This is followed by detailed criticism of established positions. We explore the shortcomings of three commonly-held views in the debate: that cryptocurrencies are property, belonging to a third category of personal property beyond the choses in possession/choses in action distinction; that cryptocurrencies are property and belong to the category of choses in action; and, lastly, that cryptocurrencies are not property at all. We then develop a new analysis of property in cryptocurrencies which takes account of both the variety of cryptocurrencies which exist and captures the doctrine operating currently in property law, including its theoretical underpinnings. Through an understanding of rights in property as relative, and property itself as a scale, we avoid shortcomings of the other popular accounts whose shortcomings we identify and show that cryptocurrencies are a form of choses in possession, namely qualified property.
Clover Alcolea, Lucas and Mihal, Jan, The Tiptoe to Crypto: An Analysis and Account of Property in Cryptocurrency (September 12, 2024), (2024) Common Law World Review (forthcoming).
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