Andrea Tosato
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Digital Assets and Property Law

By , Professor of Law, SMU Dedman School of Law.

Are Digital Assets Property Under American Law?

In the United States, digital assets are property. Both federal and state courts have recognized cryptocurrencies, stablecoins, non-fungible tokens, and other digital assets as the subject matter of property, albeit through disparate analytical approaches that privilege practical outcomes and pragmatism over theoretical clarity and doctrinal coherence.1 American courts have, for the most part, “recognized digital assets as personal property almost as a fait accompli based on their widespread commercial circulation and social adoption, focusing primarily on remedial considerations.”2

At the federal level, this recognition has emerged primarily through bankruptcy proceedings, enforcement actions, and select agency guidance. Bankruptcy courts have consistently treated digital assets as property of the estate, as in In re Celsius Network LLC, In re Voyager Digital Holdings, Inc., In re Genesis Global Holdco, LLC, and In re FTX Trading Ltd., where the analysis centered on whether customer-deposited cryptocurrencies belonged to the debtor's estate.3 Federal courts have likewise accepted digital assets as property capable of seizure in criminal-forfeiture and regulatory-enforcement contexts, as in the Silk Road prosecution, United States v. Ulbricht.4 The Securities and Exchange Commission and the Commodity Futures Trading Commission have cemented this position through enforcement actions in which digital assets have been implicitly recognized as personal property, and the Internal Revenue Service has considered cryptocurrencies a form of property as far back as 2014.5

State courts have generally arrived at the same conclusion, adopting a pragmatic stance that appears to espouse, at least implicitly, the functional approach to property. This is particularly evident in cases involving conversion claims, fraudulent transfers, and other traditional property-based causes of action, such as Temurian v. Piccolo, Ox Labs, Inc. v. BitPay, Inc., and Archer v. Coinbase, Inc.6 Scholarly engagement with the foundational property-law questions, as distinct from regulatory concerns, has come from a relatively small cohort of scholars, but it has largely converged on the same functional conclusion.7

This recognition is not idiosyncratic to the United States. Common-law jurisdictions outside the United States have likewise recognized digital assets as property, and civil-law jurisdictions have done so through statute or judicial interpretation of their intangible-property regimes. The comparative landscape is treated below in How Does American Law Compare to Other Jurisdictions on the Property Question?

What Test Do American Courts Use to Decide Whether a Digital Asset Is Property?

American courts have not adopted a single doctrinal test for the property status of digital assets. As noted above, they have for the most part proceeded pragmatically, treating digital assets as property in order to resolve the dispute before them and espousing, at least implicitly, a functional conception of property that asks how property, as a tool of social life, should be used, rather than whether a candidate interest exhibits the formal attributes of an established category.8

A more principled framework might perhaps be extrapolated from Kremen v. Cohen, in which the United States Court of Appeals for the Ninth Circuit, applying California law, confronted the then-novel question of whether a domain name could be property.9 Drawing on California precedent that property encompasses “every intangible benefit and prerogative susceptible of possession or disposition,” the court articulated a three-part test: there must be an interest capable of precise definition; it must be capable of exclusive possession or control; and the putative owner must have established a legitimate claim to exclusivity.10

Digital assets are particularly amenable to analysis under this framework. As data entries in distributed-ledger systems, each cryptocurrency token, NFT, or stablecoin unit has exact, mathematically defined properties and quantities, satisfying the first requirement. The second requirement, exclusive possession or control, is generally achieved through cryptographic mechanisms such as public-private key pairs; in Hohfeldian terms, “this control represents a ‘privilege,’ conferring on keyholders the liberty to use and transfer the asset freely, while creating in all others a correlative ‘no-right’ to prevent or interfere with such activities.” The third requirement, a legitimate claim to exclusivity, is established through the technological architecture of the relevant protocol, whether proof-of-work mining, proof-of-stake validation, or smart-contract execution.11

The Kremen test echoes, but is more functional than, the four-part analytical indicia set out by Lord Wilberforce in National Provincial Bank Ltd v. Ainsworth, which have guided property recognition in common-law jurisdictions outside the United States and which ask whether an interest is definable, identifiable by third parties, capable in its nature of assumption by third parties, and possessed of some degree of permanence or stability.12 The contrast in orientation, functional in the United States and attribute-based abroad, prefigures the deeper divergence examined in the sections that follow.

Are Digital Assets Choses in Possession, Choses in Action, or Something Else?

In American law, this classification question is of limited consequence. In common-law systems, personal property has traditionally been framed by the summa divisio between choses in possession, rights in things susceptible of physical possession, and choses in action, rights enforceable only by action and not by taking physical possession.13 In the United States, however, this dichotomy has receded from prominence, and there has been no real debate over whether digital assets are choses in possession or choses in action. In American law, “the crucial question is whether and how digital assets fit within these UCC categories and their corresponding regimes”; common-law classification “plays a consequential but residual role confined to those areas where the UCC does not apply.”14

This American distinctiveness is the result of three interrelated developments. First, American property scholarship has traditionally centered on land and real estate, leaving personal property comparatively understudied as a theoretical matter.15 Second, when American scholars have engaged personal property, they have concentrated on the practical incidents of ownership, possession, control, transfer, and use as collateral, rather than on taxonomy; the last sustained scholarship on the chose in action as a category dates to the first quarter of the twentieth century.16 Third, and most importantly, this functional orientation has produced a new body of personal-property categories that has structurally curtailed the significance of the summa divisio. That new taxonomy finds its primary expression in the UCC, which organizes commercial personal property into a distinctly American framework, including goods, accounts, payment intangibles, investment property, and intangibles, that, while bearing traces of the traditional chose distinction, operates largely independently of it.17

The contrast with other common-law jurisdictions is instructive. Outside the United States, the property question for digital assets has been litigated and debated almost entirely within the chose framework: courts and commentators agree that digital assets cannot be choses in possession, because possession requires tangibility, but divide over whether they are choses in action or instead belong to a tertium quid, a third category of personal property for data objects that exist independently of the law.18 What is striking about this debate is that the preoccupation with classification has stifled deeper investigation into the rules that actually govern the commercial circulation of digital assets, leaving such fundamental questions as the precise subject matter of the property right, the mechanisms by which title passes, and the application of the nemo dat rule and its exceptions largely unexplored.19 American law, having set the classification question aside, proceeded directly to those questions of commercial circulation.

How Did American Law Treat Digital Assets Before the 2022 UCC Amendments?

Before the 2022 Amendments, American law addressed the commercial circulation of digital assets, their voluntary transfer, their use as collateral in secured transactions, and their tokenization, by applying existing state common-law principles and UCC categories to an entirely novel kind of intangible. In each of these three domains, the inherited framework proved poorly suited to the realities of digital asset markets.20

For the voluntary transfer of ownership, the threshold question was whether a transfer of digital assets is a sale of “goods” governed by Article 2 of the UCC. Article 2 defines goods as things that are movable at the time of identification to the contract and that are not money, investment securities, or things in action.21 Digital assets are readily movable, but the better view, and the one practitioners generally adopted, was that transfers of digital assets fall outside Article 2 altogether. “Article 2 is founded on the premise that the object of sales contracts are corporeal things over which a person can have physical dominion”; its cornerstone concepts of possession and delivery presuppose tangible things, and that premise makes the statute inherently incompatible with intangibles, whether or not digital assets are characterized as things in action.22 Transfers were therefore governed by state common-law rules on the assignment of intangibles, a body of law that presented three grave problems. Those rules varied considerably from state to state, imposing legal fragmentation on markets that are borderless and depend on velocity.23 They had been developed to govern receivables, monetary claims against identifiable persons, and were conceptually ill-suited to digital assets that exist as self-contained data objects rather than as claims against anyone.24 And, most problematic, they applied the nemo dat principle strictly, with no good-faith purchaser exception, so that a buyer could never be certain of acquiring an asset free of competing claims without verifying the entire chain of title back to the asset's creation, a practical impossibility given the pseudonymity and velocity of these markets.25

For the use of digital assets as collateral in secured transactions, UCC Article 9 supplied a framework that was, in principle, clear. Because Article 9 contained no category designed for digital assets, they fell within the residual catchall of “general intangibles.”26 A security interest attached once the secured party gave value, the debtor had rights in the collateral, and the parties authenticated a security agreement describing it; perfection could be achieved by only one method, filing a financing statement; and priority followed the general first-to-file-or-perfect rule.27 Regrettably, this regime was fundamentally misaligned with the realities of digital asset markets. Filing, the sole method of perfection, was particularly problematic: the time lag of public registration stood in stark contrast to the near-instantaneous execution of digital asset transfers, and the pseudonymity of distributed-ledger networks impaired both the identification of the correct filing jurisdiction and the searching of existing liens.28 Tellingly, an arrangement emerged that ignored Article 9 entirely: debtors transferred their digital assets directly to lenders as security, with minimal documentation and no public filings, reflecting a preference for taking control of the collateral rather than relying on registries. By the early 2020s, scholars and practitioners alike had come to regard this state of affairs as unsustainable.29

For tokenization, the practice of using a digital asset, typically an NFT, to represent ownership of another asset or a right enforceable against a person, the pre-2022 attempts were almost invariably flawed.30 Representing rights in one thing through another is an ancient feature of commercial law: negotiable instruments carry payment rights, share certificates represent fractional corporate ownership, deeds embody interests in land, and bills of lading and warehouse receipts confer title to goods in transit and storage. But property law constrains these devices in two respects that private parties cannot override. It limits which kinds of property may be tokenized and through which instrument, categories fixed by law rather than left to private discretion, and it prescribes the mandatory form and substance of each instrument.31 These constraints are an expression of the numerus clausus principle: “parties cannot create new forms of property rights beyond the finite list of standardized categories recognized by law, ensuring property interests remain uniform and readily comprehensible.”32 Proponents of tokenization embraced the flexibility of contract law but disregarded these property-law strictures, mistakenly assuming that the capabilities of the technology would resolve the private-law questions that arise whenever one thing is said to represent rights in another.33 The defect is easily illustrated. If a seller issues an NFT purporting to represent ownership of an off-chain asset and transfers it to a buyer, but then transfers the actual asset to a third party who takes delivery or a valid assignment, the NFT holder cannot claim the underlying asset: the token does not legally embody ownership of it, and the buyer is left only with a claim for damages against the seller.34

What Did the 2022 UCC Amendments Change?

By 2018, it had become apparent that the Uniform Commercial Code was struggling to accommodate distributed-ledger technology and digital assets. In response, the Uniform Law Commission and the American Law Institute convened a joint committee, consulted widely with industry participants, practitioners, and scholars, and concluded that substantial revisions were required. The American Law Institute approved the resulting 2022 Amendments in May 2022, and the Uniform Law Commission followed two months later; as of early 2026 they have been enacted in thirty-three states and the District of Columbia, including New York, Delaware, California, and Florida, and continue to progress toward nationwide adoption.35

At the heart of the 2022 Amendments lies an entirely new article of the Code, Article 12, which establishes a bespoke private-law framework for a new category of personal property: the controllable electronic record (CER). “CERs are a new category of personal property, distinctly grounded in American functional pragmatism and without a parallel in traditional common law taxonomies”; rather than asking whether digital assets are choses in action or some third category, Article 12 defines a category by reference to a functional attribute, control, and supplies rules for the transfer of CERs, their use as collateral in secured transactions, and the limited circumstances in which they may carry rights in other property.36

This is a deliberately American solution, and it has a historical echo. In the 1950s, Article 9 of the Code marked an American departure from the way other common-law jurisdictions governed secured transactions, replacing inherited categories with an array of functionally defined collateral types. Article 12 repeats that choice for digital assets, forging a new personal-property category around operational characteristics rather than doctrinal purity, and in doing so aligning the law with commercial practice and market expectations.37 The doctrinal mechanics of Article 12 are treated in detail on the dedicated UCC Article 12 and Controllable Electronic Records research page; the sections that follow address the framework only insofar as it answers the property question.

What Is a Controllable Electronic Record?

A controllable electronic record is defined as “a record stored in an electronic medium that can be subjected to control.”38 The definition has three components. A record is information stored in a medium and retrievable in perceivable form. Electronic encompasses any technology with electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. With those two elements alone the category would be vast, reaching virtually all digital content; it is the third element, control, that delimits the category and gives it its character.39

Control under Article 12 requires that a person hold three powers over the electronic record. The first is the power to avail oneself of substantially all the benefit from the record. The second is the power to prevent others from doing so; this is a factual question of exclusivity rather than an assessment of legal title, and the statute is careful to preserve it even where system-level protocols may modify the asset or where the power is shared, so that control remains workable for multi-signature arrangements and protocol-governed systems. The third is the power to transfer both of the first two powers to another person, who can in turn transfer them onward.40

The defining feature that control captures is that a CER can be used and enjoyed directly, without dependence on an intermediary. Bitcoin, which a holder can spend directly, is a CER; an email account or a photograph held on a social-media platform, which can be reached only through the provider, is not. This is what marks digital assets such as cryptocurrencies, stablecoins, and NFTs off from the broader universe of electronic records, and it is the property-classification work that Article 12 performs. The full doctrinal treatment of control appears on the UCC Article 12 research page.41

Why “Control” Instead of “Possession”?

A natural question is why the 2022 Amendments built their framework around a new concept, control, rather than simply extending the familiar concept of possession to digital assets. The choice was deliberate, and it reflects a considered judgment about what possession can and cannot do.42

Since Roman law, and across the common-law tradition from Blackstone to Pollock and Holmes, possession has been understood to require physical dominion over a corporeal thing; the Restatement (Fourth) of Property states that intangible property is not subject to possession except perhaps in a metaphorical sense. Its doctrinal apparatus, what counts as sufficient possession, how possession transfers, what duties possessors owe, and how possession bears on priority among competing claimants, was developed and refined over centuries with tangible things in mind. One response to digital assets, advanced by the late Juliet Moringiello, was that possession had always been a flexible concept, adapted by courts from wild animals to free-roaming livestock to rights reified in paper, and could be expanded once more to cover electronic assets, since what matters functionally is dominion, excludability, and transferability rather than tangibility as such.43

The alternative view, which prevailed in the 2022 Amendments, departs from that solution while sharing its premise. Rather than stretch a concept whose entire apparatus presupposes a physical thing, and so risk splitting possession into one body of rules for tangibles and another for digital assets, commercial law should create a new and autonomous concept. That concept, control, draws on possession's core structure as a state of fact and carries forward the same functional commitments, dominion, excludability, and transferability, while accommodating features that the law of possession was never designed to handle: exclusivity achieved through cryptographic keys, system protocols, or registration rather than physical dominion, and shared control through multi-signature arrangements, digital escrows, and protocol-mediated governance. The disagreement with Moringiello is not foundational; both positions reject tangibility as the touchstone and insist on the same functional attributes, and the framework that emerged in Article 12, which she helped to draft as vice chair of the drafting committee, reflects a convergence of the two.44

The result is a single, technology-neutral concept that applies to any electronic record capable of being controlled, regardless of the underlying technology. Within the secured-transactions framework, the key policy choice of the 2022 Amendments is that “control of a CER is accorded similar legal significance and effects as the possession of a tangible good,” so that the rules governing attachment, perfection, and priority can operate for digital assets as they have long operated for goods.45 Control, in other words, is not a workaround for the absence of possession; it is the functional successor to possession for assets that have no physical existence to possess.

How Do You Transfer Ownership of a Digital Asset Under American Law?

The 2022 Amendments accept that controllable electronic records are objects of commerce. They do not lay down a comprehensive code of transfer rules of the kind Article 2 supplies for the sale of goods; instead, they refer most questions to other applicable law and establish two key tenets that apply across all voluntary transactions in a CER, whether by sale, lease, gift, the grant of a security interest, or any other transaction creating an interest in property.46

The first tenet is the security of property principle: “[a] purchaser of a [CER] acquires all rights . . . the transferor had or had power to transfer.” This is one of the foundational pillars of the UCC's conveyancing framework. Its corollary, the shelter principle, allows a transferor with clear title to pass it on and shield the transferee from competing claims, while its other face is a modern incarnation of nemo dat: a transferee cannot acquire rights greater than those the transferor had.47

The second tenet is the take-free rule, which moderates the rigour of the first. A person who “obtains control of [a CER] for value, in good faith, and without notice of [conflicting claims]” is a qualifying purchaser, and acquires the CER free of any property claim a third party may have, shielded against actions framed in conversion, replevin, constructive trust, equitable lien, or any other theory.48 The effect is to make CERs negotiable, in the manner of checks, promissory notes, and investment securities: if a thief misappropriates a CER and transfers control to a qualifying purchaser, the original owner cannot recover the asset and is left only with a damages claim against the thief, exactly as with a stolen negotiable instrument acquired by a holder in due course.49 Together, the two tenets reduce the burden of inquiry into title, promote transactional certainty, and minimise ownership disputes. (Where the 2022 Amendments have not been enacted, transfers remain governed by the prior assignment-of-intangibles regime described above.) The doctrinal detail appears on the UCC Article 12 research page.

Can Digital Assets Be Used as Collateral in Secured Transactions?

Yes. The 2022 Amendments establish a dedicated regime for using CERs as collateral. The overarching approach is to classify CERs as general intangibles under Article 9, subjecting them to that article's general framework while adding asset-specific rules; the key policy choice is that control of a CER is given legal significance and effects similar to those that possession carries for a tangible good.50

For attachment, there are two pathways. The first is the traditional route: a security agreement, signed by the debtor, that adequately describes the CER collateral. The second is an innovation: where the secured party has acquired control of the CER, control itself substitutes for the signed agreement, and is treated as sufficient evidence of the parties' intentions.51 For perfection, a secured party may file a financing statement, as with any general intangible, or may instead perfect by taking control of the CER, directly or through another person acting on its behalf.52

“[C]ontrol-based perfection has substantial advantages. It not only is faster and more streamlined than filing but also eliminates the jurisdictional complexities associated with determining the correct filing location,” a particularly thorny issue for assets with no physical situs. It also confers a decisive protection: a secured party that acquires control for value, in good faith, and without notice of competing claims attains qualifying-purchaser status and takes its interest free of any prior property rights in the CER.53 This advantage is reinforced by the priority rule of the new section 9-326A, which is non-temporal: a secured party that perfects by control has priority over a conflicting security interest held by a secured party that does not have control, even one perfected earlier by filing. If Lender A perfects by filing and Lender B later perfects by control of the same CER, Lender B prevails despite A's earlier perfection, an exception to Article 9's general first-to-file-or-perfect hierarchy.54 The application of this framework to crypto held as inventory is treated in the essay Floating Liens Over Crypto-in-Commerce, and the full mechanics on the UCC Article 12 research page.

Can an NFT Legally Represent Ownership of an Off-Chain Asset?

For the most part, no. The 2022 Amendments take a deliberately restrained approach to tokenization. The 2022 Amendments “largely preserve the status quo with Article 12 explicitly stating that rights in property evidenced by a CER are governed by ‘law other than this article.’”55 If an NFT is said to embody rights in a vintage car, a painting, or a digital image, that underlying asset remains subject to whatever law ordinarily governs it; issuing the token does not bring the car, painting, or image within the CER regime. The drafters made this choice deliberately, recognising that comprehensively reconfiguring property rights across every category of asset would exceed the proper scope of commercial-law codification, and leaving in place the numerus clausus constraint that defeated most pre-2022 tokenizations.56

There are three exceptions, each a category in which the law already supplies the tokenization machinery. First, under amended Article 7, electronic documents of title, electronic bills of lading and warehouse receipts, may now be issued as CERs, enabling the tokenization of rights in goods in transit or storage while preserving the traditional function of those documents.57 Second and third are two bespoke payment-rights categories: the controllable account, which builds on the Article 9 definition of an account (a right to payment for goods or services), and the controllable payment intangible, which builds on the payment intangible. What makes each “controllable” is that it is evidenced by a CER and the account debtor has agreed to pay whoever has control of that CER.58

These two categories benefit from the same take-free rule as CERs themselves, so that a qualifying purchaser takes the tokenized payment right free of competing claims; and the account debtor may agree not to assert claims or defences against subsequent transferees. “[T]he 2022 Amendments create what are effectively electronic negotiable instruments by enabling payment obligations to be evidenced by CERs with comparable legal protections for good faith purchasers.” The acquirer's risk is thereby reduced to the creditworthiness of the account debtor. This filled a gap long lamented by market participants, since the UCC had previously recognised the tokenization of payment obligations only in paper form, through negotiable instruments such as promissory notes and checks.59 The application of controllable accounts and controllable payment intangibles to claims trading is worked out in detail in Debt Tokens.

How Does American Law Compare to Other Jurisdictions on the Property Question?

The threshold question, whether digital assets are capable of being property, is largely settled across the major jurisdictions. Where systems diverge is on the questions that follow: how to classify digital assets, and what rules govern their circulation. Common-law jurisdictions outside the United States have recognized digital assets as property but have remained entangled in a theoretical debate about their classification; this “preoccupation with classification has impeded the development of a coherent framework for how property law applies to these assets in commercial transactions.” The United States, by contrast, set the classification question aside and built a functional commercial-law regime. That is the central comparative point.60

In England and Wales, the courts had already recognized that cryptoassets can be the object of property rights, applying the attributes test associated with National Provincial Bank Ltd v. Ainsworth. The remaining question was classification, and the debate there ran between treating digital assets as things in action and recognizing a third category of personal property, a tertium quid for “data objects” existing independently of the law. That debate culminated in statute: following the Law Commission's 2023 Digital Assets: Final Report, the Property (Digital Assets etc) Act 2025 confirmed that a thing is not prevented from being the object of personal property rights merely because it is neither a thing in possession nor a thing in action.61 Other common-law jurisdictions reached the property-recognition conclusion through case law: New Zealand and Australia held that cryptocurrencies satisfy the Ainsworth indicia, Singapore extended the analysis to NFTs and to a stablecoin, and Hong Kong held that cryptocurrency can be held on trust, while Canadian courts have been more cautious, with one Ontario decision declining to classify digital assets as property at all.62

Civil-law systems have engaged the question through their own categories, and they divide along the familiar fault line between the Francophone and the Germanic traditions. In France, whose civil code organizes property around the capacious notion of bien (which includes incorporeal things), the Conseil d'État characterized Bitcoin as bien meuble incorporel, incorporeal movable property, and the Commercial Court of Nanterre, applying the ownership rules of the Civil Code, awarded a borrower of bitcoins the bitcoin cash generated by a hard fork as its “fruit.”63 The German Pandectist tradition is more restrictive: under section 90 of the Bürgerliches Gesetzbuch a “thing” (Sache) must be corporeal, so cryptoassets cannot be objects of ownership and are instead treated as intangible assets transferable by assignment.64 Japan, which follows the Pandectist pattern, illustrates the consequences: in litigation arising from the collapse of the Mt. Gox exchange, the Tokyo District Court held that Bitcoin could not be the object of ownership under the Civil Code because it is neither corporeal nor subject to exclusive control, a gap the legislature later addressed by granting exchange customers a statutory priority under the Payment Services Act.65 At the regulatory level, the European Union's Markets in Crypto-Assets Regulation defines a crypto-asset as a digital representation of value or rights, language that, tellingly, speaks of rights rather than of things.66

Two points emerge from the comparison. First, the property-recognition question is no longer genuinely contested: common-law courts, common-law legislatures, and civil-law systems alike accept that digital assets can be owned. Second, the live differences are about classification and commercial circulation, and it is here that the American approach is distinctive. Rather than resolve the classification debate, the United States supplied, through UCC Article 12, a bespoke functional regime for the transfer, use as collateral, and tokenization of digital assets, an integrated commercial-law framework that no other major jurisdiction has yet matched. Whether that pragmatic, function-first approach is the better model is the question the concluding section takes up.67

Is There a Serious Argument That Digital Assets Are Not Property?

Yes. The most prominent academic dissent comes from Professor Robert Stevens of Oxford, who argues in Crypto Is Not Property (2023) and the follow-up Should Crypto Be Property? (2025) that cryptoassets are not property at all. His argument is serious and has been influential, and it is worth engaging directly.68

The argument rests on the distinction between rights and things. Property, on this view, is not the thing but the legally recognized right in relation to it, and the holder of a cryptoasset, Stevens contends, has no such right that the common law recognizes. The torts that protect property in tangible things, trespass, conversion, and detinue, all presuppose a physical thing capable of possession; the holder has no contractual right, because the system is designed to eliminate the intermediaries who might owe one; and there is no statutory right of the kind that defines intellectual property, nor any transferable privilege or immunity. A cryptoasset is therefore, on Stevens's account, valuable information rather than property. His conclusion is captured in a single formulation: cryptoassets are not property unless the purpose of a statute requires that they be treated as such.69

Two points place this dissent in its proper context. First, Stevens writes from within English law and the wider common-law Anglosphere. His authorities are English and drawn from the wider common-law Anglosphere; the torts he canvasses are the English torts of trespass, conversion, and detinue; and his target is the English Law Commission's project and the Property (Digital Assets etc) Act 2025. He does not engage the American functional approach, the Kremen line of authority, or UCC Article 12. His is an influential voice within a particular, formalist strand of common-law property theory, not a statement of American law. Second, and decisively, Stevens concedes that statutory recognition would be coherent: in the 2025 essay he writes that he sees no conceptual difficulty in a law providing that everyone owes duties to the holder of a cryptoasset not to interfere with the holder's exclusive ability to transfer it.70

That concession is precisely where the American approach answers him. Stevens's objection is that no jural relation has been identified for the holder of a cryptoasset. UCC Article 12 supplies one by statute. Control is defined as a set of legal powers, to avail oneself of substantially all the benefit of the record, to exclude others from it, and to transfer both powers, which in Hohfeldian terms operates as a privilege, conferring on the holder the liberty to use and transfer the asset while creating in all others a correlative no-right to prevent or interfere; and the take-free rule confers on a qualifying purchaser a right in the record good against adverse claimants. The United States did not wait for courts to conjure a property concept out of a checklist of attributes; it enacted a bespoke commercial-law regime that specifies the rights, the duties, and the priorities. On Stevens's own terms, that cryptoassets are not property unless a statute so requires, Article 12 is exactly such a statute.71

What Does the American Approach Mean for the Future of Property Law?

The American treatment of digital assets offers a template for the continued integration of new intangible asset classes into the property framework. By organizing the regime around functional attributes, control, excludability, transferability, and negotiability, rather than around a candidate asset's placement within the inherited dichotomy of choses in possession and choses in action, the Article 12 model can be extended to other novel intangibles that pose analogous legal challenges. Verified carbon credits are one example of an emerging asset class that, though distinct in its origins, shares the structural features that motivated Article 12 and could be accommodated by an analogous functional approach.72

The deeper lesson is methodological. American law answered the property question not by resolving whether digital assets belong to a third genus or to an expanded chose in action, but by supplying a functional commercial-law framework that gives market participants clear rules for transferring digital assets and using them as collateral, while leaving the deeper jurisprudential questions largely unresolved. This approach may lack the theoretical elegance of jurisdictions that have undertaken to classify digital assets within their property taxonomies. But the American treatment “offers something perhaps more valuable: a workable legal infrastructure that provides legal certainty, conforms to stakeholders’ expectations, and sustains innovation.” As the source scholarship concludes, “other jurisdictions may find that the American pragmatic functionalism, despite its theoretical untidiness, provides an effective model for adapting private law to emerging technologies in the digital age.”73

Notes

  1. Andrea Tosato & Christopher K. Odinet, Digital Assets and the Property Question, 78 Fla. L. Rev. (forthcoming 2026) (manuscript at 16). ↩
  2. Id. (manuscript at 17). ↩
  3. Id. (manuscript at 16–17) (citing In re Celsius Network LLC, 644 B.R. 276 (Bankr. S.D.N.Y. 2022); In re Voyager Digital Holdings, Inc., 649 B.R. 111 (Bankr. S.D.N.Y. 2023); In re Genesis Global Holdco, LLC, 652 B.R. 618 (Bankr. S.D.N.Y. 2023); In re FTX Trading Ltd., No. 22-11068, 2024 WL 4562675 (Bankr. D. Del. Oct. 23, 2024)). ↩
  4. United States v. Ulbricht, 31 F. Supp. 3d 540 (S.D.N.Y. 2014); Tosato & Odinet, supra note 1 (manuscript at 17). ↩
  5. I.R.S. Notice 2014-21, 2014-16 I.R.B. 938; Tosato & Odinet, supra note 1 (manuscript at 17). ↩
  6. Temurian v. Piccolo, No. 18-CV-62737, 2019 WL 1763022 (S.D. Fla. Apr. 22, 2019); Ox Labs, Inc. v. BitPay, Inc., No. 18-5934, 2020 WL 1039012 (C.D. Cal. Jan. 24, 2020); Archer v. Coinbase, Inc., 267 Cal. Rptr. 3d 510 (Cal. Ct. App. 2020); Tosato & Odinet, supra note 1 (manuscript at 17–18). ↩
  7. Tosato & Odinet, supra note 1 (manuscript at 19) (discussing Moringiello, Bayern, and Fairfield). ↩
  8. Tosato & Odinet, supra note 1 (manuscript at 13, 17) (describing the functional approach). ↩
  9. Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003); Tosato & Odinet, supra note 1 (manuscript at 18). ↩
  10. Kremen, 337 F.3d at 1030 (quoting Downing v. Mun. Court, 198 P.2d 923, 926 (Cal. Ct. App. 1948)); Tosato & Odinet, supra note 1 (manuscript at 18). ↩
  11. Tosato & Odinet, supra note 1 (manuscript at 18–19). ↩
  12. National Provincial Bank Ltd v Ainsworth [1965] AC 1175, 1247–48 (Lord Wilberforce); Tosato & Odinet, supra note 1 (manuscript at 14–15). ↩
  13. Tosato & Odinet, supra note 1 (manuscript at 20–21) (citing Colonial Bank v. Whinney [1885] 30 Ch D 261, 285 (Fry LJ): “all personal things are either in possession or in action”). ↩
  14. Id. (manuscript at 31). ↩
  15. Id. (manuscript at 24). ↩
  16. Id. (manuscript at 29–30). ↩
  17. Id. (manuscript at 31); see also U.C.C. § 2-105(1) (Am. L. Inst. & Unif. L. Comm'n 2022). ↩
  18. Tosato & Odinet, supra note 1 (manuscript at 22) (citing Thomas W. Merrill, Ownership and Possession, in Law and Economics of Possession 9, 25 (2015): “Possession is limited to tangible objects”). ↩
  19. Id. (manuscript at 23). ↩
  20. Id. (manuscript at 31–32). ↩
  21. U.C.C. § 2-105(1) (Am. L. Inst. & Unif. L. Comm'n 2022); Tosato & Odinet, supra note 1 (manuscript at 32). ↩
  22. Tosato & Odinet, supra note 1 (manuscript at 33). ↩
  23. Id. (manuscript at 33–34). ↩
  24. Id. (manuscript at 34). ↩
  25. Id. (manuscript at 34–35). ↩
  26. Id. (manuscript at 36). ↩
  27. U.C.C. §§ 9-203(b), 9-310(a), 9-322(a)(1) (Am. L. Inst. & Unif. L. Comm'n 2022); Tosato & Odinet, supra note 1 (manuscript at 36). ↩
  28. Tosato & Odinet, supra note 1 (manuscript at 37). ↩
  29. Id. (manuscript at 37). ↩
  30. Id. (manuscript at 38). ↩
  31. Id. (manuscript at 39). ↩
  32. Id. (manuscript at 40) (citing Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 Yale L.J. 1 (2000)). ↩
  33. Id. (manuscript at 41). ↩
  34. Id. (manuscript at 41–42). ↩
  35. Tosato & Odinet, supra note 1 (manuscript at 42–43); for the current enactment count, see Uniform Law Commission, UCC, 2022 Amendments to (legislative tracker), https://www.uniformlaws.org (thirty-three states and the District of Columbia as of early 2026, New York having enacted in December 2025). ↩
  36. Id. (manuscript at 42–43); U.C.C. § 12-102(a)(1) (Am. L. Inst. & Unif. L. Comm'n 2022). ↩
  37. Tosato & Odinet, supra note 1 (manuscript at 46). ↩
  38. U.C.C. § 12-102(a)(1) (Am. L. Inst. & Unif. L. Comm'n 2022); Tosato & Odinet, supra note 1 (manuscript at 43). ↩
  39. Tosato & Odinet, supra note 1 (manuscript at 43–44); U.C.C. § 1-201(b)(31), (16A). ↩
  40. U.C.C. § 12-105(a)–(b) (Am. L. Inst. & Unif. L. Comm'n 2022); Tosato & Odinet, supra note 1 (manuscript at 44–45). ↩
  41. Tosato & Odinet, supra note 1 (manuscript at 45–46). ↩
  42. Christopher K. Odinet & Andrea Tosato, Seeing the Intangible: Juliet Moringiello's Enduring Legacy in Property Law, Am. Bankr. L. Rev. (forthcoming 2026) (manuscript at 13–19). ↩
  43. Odinet & Tosato, Seeing the Intangible, supra note 42 (manuscript at 4, 14–16); see Juliet M. Moringiello, False Categories in Commercial Law: The (Ir)relevance of (In)tangibility, 35 Fla. St. U. L. Rev. 119, 164 (2007). ↩
  44. Odinet & Tosato, Seeing the Intangible, supra note 42 (manuscript at 16–20); see U.C.C. § 12-105(b) (Am. L. Inst. & Unif. L. Comm'n 2022); U.C.C. Amendments (2022) prefatory note at vii–viii (listing Juliet M. Moringiello among the drafters). ↩
  45. Tosato & Odinet, supra note 1 (manuscript at 48); U.C.C. § 9-107A (Am. L. Inst. & Unif. L. Comm'n 2022). ↩
  46. U.C.C. § 12-104(c), (f) (Am. L. Inst. & Unif. L. Comm'n 2022); § 1-201(b)(29); Tosato & Odinet, supra note 1 (manuscript at 46). ↩
  47. U.C.C. § 12-104(d) & cmt. 4 (Am. L. Inst. & Unif. L. Comm'n 2022); Tosato & Odinet, supra note 1 (manuscript at 46–47). ↩
  48. U.C.C. §§ 12-102(a)(2), 12-104(e), (g) (Am. L. Inst. & Unif. L. Comm'n 2022); Tosato & Odinet, supra note 1 (manuscript at 47). ↩
  49. U.C.C. § 12-104 cmt. 7 (Am. L. Inst. & Unif. L. Comm'n 2022); Tosato & Odinet, supra note 1 (manuscript at 47). ↩
  50. U.C.C. § 9-102(a)(42) (Am. L. Inst. & Unif. L. Comm'n 2022); Tosato & Odinet, supra note 1 (manuscript at 48). ↩
  51. U.C.C. §§ 9-108, 9-107A (Am. L. Inst. & Unif. L. Comm'n 2022); Tosato & Odinet, supra note 1 (manuscript at 48). ↩
  52. U.C.C. §§ 9-310(a), 9-310(b)(8) (Am. L. Inst. & Unif. L. Comm'n 2022); Tosato & Odinet, supra note 1 (manuscript at 48). ↩
  53. U.C.C. §§ 12-102(a)(2), 12-104 (Am. L. Inst. & Unif. L. Comm'n 2022); Tosato & Odinet, supra note 1 (manuscript at 49). ↩
  54. U.C.C. § 9-326A (Am. L. Inst. & Unif. L. Comm'n 2022); Tosato & Odinet, supra note 1 (manuscript at 49). ↩
  55. U.C.C. § 12-104(f) (Am. L. Inst. & Unif. L. Comm'n 2022); Tosato & Odinet, supra note 1 (manuscript at 50). ↩
  56. Tosato & Odinet, supra note 1 (manuscript at 50). ↩
  57. U.C.C. § 7-106 (Am. L. Inst. & Unif. L. Comm'n 2022); Tosato & Odinet, supra note 1 (manuscript at 50). ↩
  58. U.C.C. § 9-102(a)(27A)–(27B) (Am. L. Inst. & Unif. L. Comm'n 2022); Tosato & Odinet, supra note 1 (manuscript at 50). ↩
  59. U.C.C. §§ 9-317(i), 9-403(b), 12-104 cmt. 10 (Am. L. Inst. & Unif. L. Comm'n 2022); Tosato & Odinet, supra note 1 (manuscript at 50–51); see also Andrea Tosato, Diane Lourdes Dick & Christopher K. Odinet, Debt Tokens, 173 U. Pa. L. Rev. 1103, 1157–59 (2025). ↩
  60. Tosato & Odinet, supra note 1 (manuscript at 4, 22–24). ↩
  61. Property (Digital Assets etc) Act 2025, c. 29, § 1 (UK) (in force Dec. 2, 2025); Law Commission, Digital Assets: Final Report (2023) Law Com No 412, HC 1486; see Tosato & Odinet, supra note 1 (manuscript at 14–15, 22–23). ↩
  62. Tosato & Odinet, supra note 1 (manuscript at 14–16) (citing, inter alia, Ruscoe v. Cryptopia Ltd. (in liq) [2020] NZHC 728; CLM v. CLN [2022] SGHC 46; Janesh s/o Rajkumar v. Unknown Person [2022] SGHC 264; ByBit Fintech Ltd. v. Ho Kai Xin [2023] SGHC 199; Re Gatecoin Ltd. [2023] 3 H.K.C. 401; Cicada 137 LLC v. Medjedovic, 2021 ONSC 8581). ↩
  63. Kelvin F.K. Low & Megumi Hara, Cryptoassets and Property, in Research Handbook on European Property Law 146 (Sjef van Erp & Katja Zimmermann eds., 2024) (citing CE, 26 avr. 2018, n° 417809 (Fr.); T. com. Nanterre, 26 février 2020, n° 2018F00466 (Fr.)). ↩
  64. Low & Hara, supra note 63 (discussing § 90 BGB). ↩
  65. Low & Hara, supra note 63 (discussing Tokyo District Court, 5 August 2015, n° 2014(wa)33320, and the Payment Services Act, art. 63-19-2(1) (Japan)). ↩
  66. Low & Hara, supra note 63 (discussing the MiCA proposal, art. 3(2), and observing that the French text uses “droits” and the German “Rechten” rather than “choses” / “Sachen”); the definition appears in the enacted Regulation (EU) 2023/1114 (MiCAR), art. 3(1)(5). ↩
  67. Tosato & Odinet, supra note 1 (manuscript at 4, 31, 52). ↩
  68. Robert Stevens, Crypto Is Not Property, 139 L.Q. Rev. 615 (2023); Robert Stevens, Should Crypto Be Property? (2025) (manuscript on file). ↩
  69. Stevens, Crypto Is Not Property, supra note 68, at 619 (rights versus things; no tort, contractual, statutory, or other right in the holder); id. (cryptoassets are not property “unless the purpose of a statute requires it to be treated as such”) (citing DPP v. Briedis [2021] EWHC 3155 (Admin), [10]). ↩
  70. Stevens, Should Crypto Be Property?, supra note 68 (“I do not see any conceptual difficulty whatsoever. The law could be that we all have duties to the holders of crypto not to interfere with or impair their exclusive ability to transfer their crypto asset.”). ↩
  71. U.C.C. § 12-105(a), §§ 12-102(a)(2), 12-104(e) (Am. L. Inst. & Unif. L. Comm'n 2022); Tosato & Odinet, supra note 1 (manuscript at 18–19, 44–47) (analyzing control through Hohfeld's framework and the take-free rule); Odinet & Tosato, Seeing the Intangible, supra note 42 (manuscript at 16–19). ↩
  72. Tosato & Odinet, supra note 1 (manuscript at 5–6) (blueprint for integrating future forms of intangible property, citing carbon credits as an example). ↩
  73. Id. (manuscript at 52). ↩

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