Introduction: A Statutory Intervention into the Foundations of Property Classification
The Property (Digital Assets etc) Act 2025 (“the 2025 Act”) is a brief but doctrinally significant piece of legislation. It confirms 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. In doing so, the Act formally recognises that digital assets—including crypto-tokens, non-fungible tokens (NFTs), and certain other digitally native holdings—are capable of attracting proprietary rights under English law. The Act emerged from the Law Commission’s detailed 2023 Final Report on Digital Assets, which recommended legislative confirmation of a “third category” of personal property to accommodate assets that do not fit comfortably within the historic binary classification of choses in possession and choses in action (Law Commission, 2023).
The question posed by this essay is whether this statutory development can genuinely reshape traditional categories of property law. The thesis advanced here is that the 2025 Act does reshape the taxonomy of personal property in a meaningful but carefully bounded way: it breaks the longstanding assumption that the chose in possession/chose in action binary is exhaustive, and in doing so it provides a platform for the common law to develop proprietary principles for digital assets incrementally. However, the Act’s reshaping power is deliberately limited. It does not define what a digital asset is, does not specify the content of proprietary rights attaching to third-category things, and does not resolve deeper questions about transferability, security interests, trusts, or remedies. The Act is therefore better understood as a structural enabling measure—removing a taxonomic barrier—rather than as a comprehensive rewriting of property law’s foundations. Its true reshaping effect will depend on the willingness and capacity of courts to develop the common law within the space that Parliament has opened.
The Traditional Binary: Choses in Possession and Choses in Action
English personal property law has, since at least the nineteenth century, been organised around a fundamental binary distinction. A chose in possession is a tangible thing capable of physical possession: goods, chattels, currency in physical form. A chose in action is an intangible right enforceable by legal action rather than by taking possession: debts, shares, intellectual property rights, contractual rights (Torkington v Magee [1902] 2 KB 427, per Channell J). This twofold classification was treated as exhaustive for most purposes, and Colonial Bank v Whinney (1886) 30 Ch D 261 is frequently cited as authority for the proposition that personal property falls into one category or the other (Bridge et al., 2017, pp. 5–8).
The binary was never perfectly watertight. Documentary intangibles—bills of lading, bills of exchange, share certificates—occupy an awkward space, being physical documents that represent intangible rights (Goode and McKendrick, 2020, ch. 2). Nevertheless, the dominant doctrinal assumption was that the categories were exhaustive and that anything falling outside them was not the object of personal property rights. This assumption mattered practically: if a novel asset could not be classified as either a chose in possession or a chose in action, it risked being treated as having no proprietary character at all, with consequences for security, insolvency priority, tracing, and remedies.
The difficulty became acute with the emergence of crypto-tokens and other digitally native assets. A Bitcoin holding, for example, is not a tangible thing: it cannot be physically possessed in any orthodox sense. Nor is it a right enforceable against a particular obligor: it exists as a cryptographically secured entry on a distributed ledger, and its value derives from the protocol’s consensus mechanism rather than from any contractual or legal claim against a counterparty (Law Commission, 2023, paras 2.10–2.30). It does not map naturally onto either traditional category.
Judicial Movement Before the Act: AA v Persons Unknown and Beyond
Before the 2025 Act, courts had already begun to stretch existing categories to accommodate digital assets. The most significant early decision was AA v Persons Unknown [2019] EWHC 3556 (Comm), in which Bryan J held that Bitcoin satisfied the four criteria of property identified in Lord Wilberforce’s speech in National Provincial Bank v Ainsworth [1965] AC 1175: it was definable, identifiable by third parties, capable of assumption by third parties, and had some degree of permanence or stability. Bryan J concluded that crypto-assets were property and could be the subject of a proprietary injunction. The judgment did not, however, resolve precisely which category of property they fell into, noting only that they met the Ainsworth indicia.
Subsequent decisions reinforced this direction. In Fetch.ai Ltd v Persons Unknown [2021] EWHC 2254 (Comm), the court granted a proprietary freezing injunction over cryptocurrency, treating it as property without extended taxonomic analysis. In the New Zealand case of Ruscoe v Cryptopia Ltd (in liq) [2020] NZHC 728, Gendall J held that cryptocurrencies were property capable of being held on trust, reasoning that they satisfied the Ainsworth criteria and that there was no principled reason to deny them proprietary status. Although a foreign authority, Ruscoe was influential in the English debate because it confronted the taxonomic question directly and concluded that crypto-assets constituted a species of intangible property distinct from traditional choses in action (Low and Mik, 2020).
The UK Supreme Court’s decision in Tulip Trading Ltd v Bitcoin Association for BSV [2023] EWCA Civ 83 (at the Court of Appeal stage) also proceeded on the assumption that Bitcoin could be treated as property, though the case primarily concerned whether developers owed fiduciary duties. Together, these decisions demonstrated judicial willingness to recognise proprietary rights in digital assets, but they did so without a settled theoretical framework. The taxonomic question—whether digital assets were choses in action, a new third category, or something else—remained unresolved at common law.
The difficulty with relying solely on judicial development was threefold. First, each case addressed only the specific relief sought, leaving the broader classificatory question open. Second, the Ainsworth criteria describe indicia of property but do not themselves constitute a rule of classification within the established personal property taxonomy. Third, the assumption that choses in possession and choses in action were exhaustive categories meant that any judicial recognition of a new category risked being seen as illegitimate without legislative endorsement. It was precisely this concern that motivated the Law Commission’s recommendation for statutory intervention (Law Commission, 2023, paras 4.1–4.15).
The Law Commission’s Conceptual Framework: The Third Category
The Law Commission’s 2023 Final Report, Digital Assets, is the intellectual foundation of the 2025 Act and warrants close examination. The Commission concluded that certain digital assets—paradigmatically crypto-tokens—have characteristics that make them genuinely distinct from both choses in possession and choses in action. The Commission identified several features common to these assets: they are composed of data represented in an electronic medium; they exist by virtue of a system of rules, typically a protocol or platform; they are rivalrous, meaning that use or control by one person precludes simultaneous use or control by another; and they are not dependent on a relationship with a specific obligor for their existence or value (Law Commission, 2023, paras 2.38–2.60).
The rivalrous quality is particularly important. Traditional intangible rights—debts, contractual claims, intellectual property—are not rivalrous in this sense: the existence of a debt does not prevent the debtor from owing an identical debt to someone else. A crypto-token, by contrast, behaves more like a tangible thing in that its control is exclusive, yet it lacks physicality. This combination of intangibility and rivalrousness is what makes digital assets taxonomically awkward and is the core justification for recognising a distinct third category (Law Commission, 2023, paras 2.50–2.55).
The Commission recommended that legislation should confirm that a thing is not prevented from being the object of personal property rights merely because it is neither a chose in possession nor a chose in action. Critically, the Commission did not recommend a detailed statutory definition of what falls within the third category, nor did it recommend codification of the rules governing proprietary rights in digital assets. Instead, it recommended a minimal statutory “gateway” that removes the taxonomic barrier and leaves the common law to develop the substantive rules incrementally (Law Commission, 2023, paras 4.5–4.20). This design choice is itself significant for assessing the Act’s reshaping potential.
Academic commentary on the Law Commission’s framework has been broadly supportive but not uncritical. Fox (2023) has argued that the third-category approach is doctrinally sound because it preserves the coherence of the existing categories rather than distorting them. Green (2024) has questioned whether a purely negative statutory formulation—saying what does not prevent proprietary status—is sufficient to guide courts in determining the content and incidents of proprietary rights in the new category. Bridge (2024) has observed that while the taxonomic reform is welcome, the real challenges lie downstream, in applying rules of transfer, priority, security, and insolvency to assets whose technical architecture may resist assimilation to existing legal frameworks.
The Property (Digital Assets etc) Act 2025: Statutory Text and Structural Effect
The 2025 Act is remarkably concise. Its operative provision confirms 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. The Act does not define “digital asset.” It does not enumerate what falls within the third category. It does not prescribe the incidents of proprietary rights in third-category things. It amends no other statute in detail. In legislative terms, it is a clarificatory or facilitative provision rather than a substantive code.
This minimalism is deliberate and reflects the Law Commission’s recommendation. The question is whether minimalism limits or enhances the Act’s capacity to reshape property law. Two competing perspectives deserve analysis.
On one view, the Act’s narrow scope limits its reshaping power. It removes a barrier but builds no new structure. Courts must still determine, case by case, whether a particular digital asset satisfies the common law criteria for proprietary status, what rights attach to it, how those rights are transferred, whether they can be the subject of security interests, and how they interact with insolvency rules. Without statutory guidance on these matters, the development of property law for digital assets depends entirely on common law incrementalism, which may be slow, inconsistent, and limited by the facts of litigated disputes. Green (2024) has argued that this leaves a “substantive vacuum” that the Act itself does not fill.
On the other view, the Act’s minimalism is its strength. Property law has always developed through common law reasoning, and the most enduring proprietary concepts—possession, title relativity, the nemo dat principle—were judicially created rather than legislatively prescribed. A detailed statutory code for digital asset property rights would risk obsolescence given the pace of technological change; it might also constrain judicial flexibility in adapting proprietary principles to assets that do not yet exist. By removing the taxonomic barrier and no more, the Act enables organic common law development within a framework of legislative legitimacy. This is the approach favoured by the Law Commission and supported by Fox (2023), who argues that the genius of the common law of property lies in its capacity for incremental adaptation, and that the Act preserves that capacity.
The better view, it is submitted, is that both perspectives contain truth, but that the second is more persuasive as a matter of legal design. The Act’s reshaping effect is structural rather than substantive: it changes what the categories of personal property are, without dictating in detail what follows from that change. This is a genuine and important reshaping, because the exhaustiveness of the binary was itself a substantive constraint. Removing it opens doctrinal space that did not previously exist—or existed only precariously through judicial improvisation.
Does the Act Reshape or Merely Confirm?
A significant question is whether the 2025 Act changes the law or merely confirms what courts were already doing. If the Act merely declares what the common law had already recognised, its reshaping effect is more symbolic than real.
There is force in the “mere confirmation” argument. As discussed above, courts in AA v Persons Unknown, Fetch.ai, and related cases had already treated crypto-assets as property. The Singapore International Commercial Court in B2C2 Ltd v Quoine Pte Ltd [2019] SGHC(I) 3 reached a similar conclusion. Academic opinion was overwhelmingly in favour of recognising proprietary rights in digital assets (see, for example, Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR 502, though in a different context). One might argue that the Act adds nothing to what the common law was already developing.
However, this argument underestimates the doctrinal significance of legislative confirmation. Prior to the Act, judicial recognition of crypto-assets as property was always vulnerable to the objection that it lacked a secure taxonomic foundation. The decisions relied on the Ainsworth indicia, which are descriptive criteria rather than classificatory rules. A future court could, in principle, have held that the indicia were necessary but not sufficient, or that the binary classification was exhaustive as a matter of established principle. The Act forecloses that possibility. It provides an authoritative legislative statement that the binary is not exhaustive—a proposition that no court had stated with equivalent finality (Law Commission, 2023, para 4.12).
Moreover, the Act has practical consequences beyond mere symbolism. It provides legal certainty for market participants, lenders, and insolvency practitioners who need to know whether digital assets can be the subject of proprietary claims, security interests, and trust arrangements. Certainty of classification is a precondition for these more specific legal questions. As Worthington (2023) has argued in the context of proprietary reasoning more broadly, the threshold question of whether something is property at all precedes and constrains every subsequent question about transfer, priority, and remedy. The Act resolves the threshold question with legislative authority, and that resolution is not trivial.
The Act therefore both confirms and reshapes. It confirms the direction of judicial travel, but it reshapes the doctrinal landscape by converting what was an emerging judicial tendency into a settled legislative principle. The distinction matters because legislative confirmation is more authoritative, more visible to market participants, and more resistant to future judicial retreat.
Limits of the Reshaping: What the Act Does Not Do
To assess the Act’s reshaping capacity accurately, it is essential to identify what it does not address. Several critical questions remain open.
First, the Act does not define what qualifies as a third-category thing. The Law Commission identified crypto-tokens as the paradigm case, but acknowledged that the boundaries of the category are uncertain. Does the category extend to in-game virtual items, domain names, digital carbon credits, or data sets? The Act provides no statutory test. Courts will need to apply the Ainsworth indicia or develop new criteria, and the results may be inconsistent. The absence of a definition is a deliberate design choice, but it means that the Act’s reshaping effect is indeterminate at the margins (Green, 2024).
Second, the Act does not specify the incidents of proprietary rights in third-category things. For traditional property, the content of ownership, possession, and title is supplied by centuries of common law development. For digital assets, many of these concepts require adaptation. What constitutes “possession” of a crypto-token? Is it control of the private key? If so, how does multi-signature control affect possessory analysis? What happens when a protocol is forked, creating a duplicate asset on a new chain? The Act is silent on these matters, and the Law Commission acknowledged that significant further work would be needed on the law of possession, transfer, and security as applied to digital assets (Law Commission, 2023, paras 9.1–9.60).
Third, the Act does not address the interaction between digital asset property rights and existing statutory regimes. The Bills of Sale Acts, the Sale of Goods Act 1979, the Financial Collateral Arrangements (No 2) Regulations 2003, and the Insolvency Act 1986 all contain provisions that assume the traditional property taxonomy. The Act does not amend these instruments. Where a digital asset falls within the third category, difficult questions arise about whether and how existing statutory rules apply. For instance, section 61(1) of the Sale of Goods Act 1979 defines “goods” as including “all personal chattels other than things in action and money.” A third-category digital asset is neither a thing in action nor a personal chattel in the traditional sense; its position under the Sale of Goods Act is therefore uncertain. The Law Commission recognised this issue and recommended further legislative work, which has not yet occurred (Law Commission, 2023, paras 15.1–15.35).
Fourth, the Act does not resolve conflict of laws questions. Digital assets exist on distributed ledgers that are not located in any single jurisdiction. Determining the applicable law for questions of title, priority, and transfer in respect of third-category things raises novel private international law problems that the Act does not address. UNIDROIT’s Principles on Digital Assets and Private Law (2023) offer a potential framework, but their status in English law is advisory rather than binding. The Law Commission has indicated that conflict of laws in this area requires separate treatment (Law Commission, 2023, paras 16.1–16.20).
These gaps do not undermine the Act’s significance, but they do qualify its reshaping power. The Act opens a door; it does not furnish the room beyond it. Whether the reshaping is ultimately deep or shallow depends on subsequent judicial and, potentially, further legislative development.
Theoretical Implications: Is the Third Category Doctrinally Coherent?
A deeper question is whether the recognition of a third category is theoretically coherent within the structure of English property law, or whether it introduces an anomaly that may cause difficulties downstream.
The traditional binary derived its coherence from a relatively clear organising principle: the distinction between tangible things susceptible to physical control and intangible rights enforceable by legal action. Each category was associated with a set of legal incidents—rules of transfer, possession, priority, and remedy—that were tailored to the nature of the asset. Choses in possession were transferred by delivery; choses in action were transferred by assignment. Security over choses in possession could be created by pledge; security over choses in action required different mechanisms. The binary, for all its imperfections, provided a functional framework linking the nature of the asset to the legal rules governing it (Bridge et al., 2017, ch. 1).
The third category lacks this kind of internal structure. It is defined negatively: a thing that is neither a chose in possession nor a chose in action but is nevertheless capable of being the object of personal property rights. This negative definition does not itself generate rules of transfer, possession, priority, or security. It tells us that the asset can be property, but not what kind of property it is or what legal consequences follow from its proprietary status.
Penner (2020) has argued, in the context of property theory more broadly, that the concept of a property right is inherently linked to the concept of a thing, and that the characteristics of the thing determine the content of the right. On this view, a category defined only by what it is not may be insufficiently determinate to generate meaningful proprietary rules. The risk is that the third category becomes a residual bin into which diverse assets are placed without shared characteristics, making it difficult to develop coherent rules that apply across the category.
However, the Law Commission’s analysis partially addresses this concern. The Commission identified positive characteristics shared by paradigmatic third-category things: intangibility, rivalrousness, independence from an obligor, and dependence on a system of rules (Law Commission, 2023, paras 2.38–2.60). These characteristics, while not enacted in the statute, provide a basis for judicial development of category-specific rules. The key characteristic—rivalrousness combined with intangibility—is what distinguishes third-category things from both choses in possession (which are rivalrous but tangible) and choses in action (which are intangible but not rivalrous in the same sense). This gives the category a positive identity, even if the statute frames it negatively.
Moreover, the common law has coped before with residual or open-textured categories. The category of choses in action itself is notoriously heterogeneous, encompassing debts, equitable interests, intellectual property rights, and contractual claims, which share little beyond intangibility and enforceability (Bridge et al., 2017, p. 7). The law has developed differentiated rules within that category without requiring a single unifying definition. There is no reason in principle why the same approach cannot work for the third category, provided that courts are attentive to the specific characteristics of the assets in question.
The theoretical coherence of the third category is therefore defensible, but it requires ongoing judicial effort to give it substantive content. The Act creates the category; the common law must populate it.
Comparative Perspectives: How Other Jurisdictions Have Approached the Problem
The English approach can be usefully contrasted with developments in other jurisdictions, though the limits of comparative transplantation must be acknowledged.
In the United States, the Uniform Commercial Code (UCC) was amended in 2022 to introduce Article 12, dealing with “controllable electronic records.” The UCC approach is more detailed than the English Act: Article 12 defines “controllable electronic record,” specifies when a person has “control” over such a record, and creates rules for taking free of competing claims analogous to the good faith purchaser protections for negotiable instruments (Uniform Law Commission, 2022). This approach provides greater certainty in commercial transactions but may be less flexible than the English common law model, because it ties the rules to specific technological characteristics that may change.
In Singapore, the courts have recognised proprietary rights in digital assets through the common law without specific legislation, as in B2C2 Ltd v Quoine Pte Ltd [2019] SGHC(I) 3, and the Singaporean government has not enacted equivalent legislation. The Singaporean approach relies on existing equitable principles and the adaptability of common law categories. The New Zealand approach in Ruscoe v Cryptopia similarly relied on the common law without legislative intervention.
The contrast between the English and American approaches is instructive. The UCC model offers commercial certainty through detailed rules; the English model offers flexibility through open-textured common law development backed by a minimal statutory gateway. Each carries risks. The American approach risks technological obsolescence if the statutory definitions become outdated; the English approach risks uncertainty if courts develop the law slowly or inconsistently. The Law Commission’s choice of the English model reflects a deliberate judgment about the relative institutional competence of Parliament and the courts: Parliament removes the taxonomic barrier; courts develop the substantive rules as disputes arise (Law Commission, 2023, paras 4.5–4.8). Whether this allocation of institutional responsibility proves wise will depend on the volume and quality of litigation in the coming years.
The Act’s Broader Significance for Property Law Theory
Beyond its immediate application to digital assets, the 2025 Act has broader implications for the theory of property law in English law. The recognition that personal property is not limited to the traditional binary challenges the assumption that property categories are fixed and exhaustive. This has at least two significant consequences.
First, it endorses a more functional and open-textured approach to the question “what can be property?” The Ainsworth indicia, which describe the characteristics that a thing must have to be capable of being property, are implicitly elevated in importance. If the statutory categories are not exhaustive, then the question whether a novel thing can be property must be answered by reference to general criteria rather than categorical classification. This shifts the emphasis from taxonomy to principle, and aligns English law more closely with the approach of other common law systems that have never adopted the chose in possession/chose in action binary as rigidly as England (Swadling, 2020).
Second, it raises the question whether the Act’s logic could extend beyond digital assets to other novel or contested categories of property. Carbon credits, tradeable permits, data rights, and certain forms of virtual property might also resist classification as either choses in possession or choses in action. The Act does not limit the third category to digital assets; its operative provision is general. In principle, any thing that satisfies the common law criteria for proprietary status could fall within the third category if it is neither a chose in possession nor a chose in action. This potential breadth is both a strength and a risk: it provides a mechanism for future development, but it may also generate uncertainty about the boundaries of the category (Green, 2024).
The Act’s broader significance, therefore, lies not only in what it does for digital assets specifically, but in what it signals about the nature of property law itself. It acknowledges that property categories are not immutable and that the law must be capable of responding to new forms of value. This is a conceptual shift, even if the Act’s immediate practical effect is confined to confirming what courts were already doing.
Potential Challenges in Implementation
Several practical challenges may limit the Act’s effectiveness as a reshaping instrument. One important challenge concerns the relationship between the legal concept of proprietary rights and the technical architecture of distributed ledger technology. Legal rules assume that proprietary rights can be identified, transferred, and enforced through institutional mechanisms—courts, registries, intermediaries. Distributed ledger technology is designed to operate without centralised intermediaries, and its consensus mechanisms may not align with legal rules about when transfer of title occurs or who has priority in a dispute (De Filippi and Wright, 2018).
For example, if a crypto-token is transferred on-chain to a recipient, but the transfer was procured by fraud, the legal position may require rescission and restitution of the proprietary interest. The blockchain, however, records the transfer as final and cannot be reversed without a new transaction. The question is whether the legal and technical layers can be reconciled, and if so, how. The Act does not address this, and it is a question that courts will need to confront as disputes arise. The answer may require distinguishing between the legal transfer of a proprietary right and the technical transfer of control on the ledger—a distinction that is conceptually available but practically complex (Walch, 2019).
A further challenge concerns the capacity of existing remedial rules to accommodate third-category things. Proprietary remedies—constructive trusts, tracing, equitable liens—depend on the ability to identify and follow specific property through transactions. Crypto-tokens on certain blockchains can be traced with considerable precision, because the ledger records every transaction. On other platforms, privacy-enhancing technologies may obscure the chain of transactions, making tracing difficult or impossible. The Act provides no special rules for tracing digital assets, and the existing tracing rules were developed for tangible property and money, not for cryptographically secured ledger entries (Fox, 2023).
Conclusion: Structural Reshaping with an Incomplete Architecture
The Property (Digital Assets etc) Act 2025 can reshape traditional categories of property law, and it has done so, but in a specific and bounded way. Its reshaping effect is structural: it breaks the exhaustiveness of the chose in possession/chose in action binary and creates doctrinal space for a third category of personal property. This is a genuine change to the taxonomy of English personal property law—a taxonomy that had remained essentially stable since the nineteenth century. The change is not merely symbolic; it provides legislative authority for the recognition of proprietary rights in digital assets, it forecloses the objection that the traditional categories are exhaustive, and it provides legal certainty for market participants, courts, and insolvency practitioners.
However, the Act’s reshaping power is deliberately limited. It does not define the third category, does not specify the incidents of proprietary rights within it, and does not address the interaction between third-category rights and existing statutory regimes governing transfer, security, and insolvency. These omissions are by design: the Act is a gateway provision that enables common law development rather than a comprehensive code. The most important reason supporting the Act’s approach is that a detailed code would risk obsolescence and rigidity in a domain defined by rapid technological change. The most important limitation is that the Act transfers the burden of developing substantive rules to the courts, whose capacity to do so depends on the volume, quality, and variety of litigated disputes.
The Act therefore reshapes the architecture of property classification without completing the building. Whether the reshaping proves profound or modest will depend on how courts, practitioners, and, potentially, further legislation develop the substantive law within the space that the Act has created. On the evidence so far, the Act represents a carefully judged intervention: enough to remove the principal doctrinal obstacle, but not so much as to pre-empt the common law’s capacity for incremental and contextually sensitive development. The third category is now part of English property law. Its content remains to be written.
References
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