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The Qualification of Bitcoins as Documentary Intangibles

It is unclear how bitcoins should be qualified from a legal perspective. This qualification is, among other things, relevant to determine how bitcoins should be transferred, pledged, attached and executed. In this article, bitcoins and bitcoin transfers are explained from a technical perspective and subsequently qualified from a contract and property law perspective. Given the borderless nature of bitcoins and its underlying bitcoin technology, these subjects are dealt with in an international manner, often drawing upon legal concepts which form the backbone of most if not all legal systems, especially those in the EU. In this article, the following conclusions are reached. First of all, from a contract law perspective, the bitcoin network qualifies as a multi-party contract to which the various participants (users, miners and nodes) accede by participating in the network for the first time and, in doing so, accept the third-party rights clause stipulated in that agreement in their favour. Secondly, from a property law perspective, the rights with respect to the bitcoins credited to a bitcoin address are put to bearer at the same moment these bitcoins are so credited. They are put to the bearer of the value bearer on which the private key associated with that bitcoin address is stored. That value bearer embodies the right of that bearer to perform the work necessary to transfer the bitcoins on that bitcoin address, more specifically vis-à-vis the miners to validate that transaction and vis-à-vis the nodes to verify the work of the winning miner. Those bitcoin rights can be transferred, pledged, attached and executed by possession of the value bearer.