The concept of property has always been, and remains, a vexed notion. Within civilian systems, the difficulty of incorporating the basic idea of ownership – surely fundamental to any idea of property – within the Gaian and other schema demonstrates the elusiveness of property. Its elusiveness lies in part in the intersection of various distinct ideas within the law of property. In civilian schema, these distinct ideas are often distinguished by discrete vocabulary. For example, a modern French schema distinguishes between biens (assets), choses (things), and droits (rights). Within common law systems, the comparative lack of attention to classification, and relative paucity in vocabulary for discrete concepts has led to much confusion. With this background in mind, it is perhaps unsurprising to find that cryptoassets have been more readily accommodated within common law systems’ vague notions of property than those of civilian systems. Within the civil law, Francophone systems, with looser conceptions of chose than Germanic Pandectist systems’ strict conceptions of Sach (thing), are more accommodating of cryptoassets but even so, it may more accurately be said that they are biens or droits. Accordingly, depending on one’s conception of property, cryptoassets may (or may not) be property.
Low, Kelvin FK and Hara, Megumi, Cryptoassets and Property (May 8, 2022) in Sjef van Erp and Katja Zimmermann (eds), Edward Elgar Research Handbook on EU Property Law (forthcoming).