Virtual Property: Trusts Of Cryptocurrencies And Other Digital Assets

Abstract

The question whether digital assets such as cryptocurrencies are "property" as a matter of law has been the subject of academic debate almost since the inception of the bitcoin network in 2009. The question arises from the fact that such assets, and cryptocurrencies in particular, do not fit into traditional categories of property as understood by the common law, being neither "choses in possession" nor "choses in action". However, following a series of decisions in the last couple of years, it now seems reasonably settled that this question will be answered in the affirmative, although no cases have so far reached the highest level of the courts. The consequences have yet to be worked out. One obvious consequence is that cryptocurrencies can be the subject of a trust. However, the unique features of digital assets give rise to a number of interesting problems, both theoretical and practical, on which there is little authoritative guidance.