Each of these NFTs will attract quite a different classification for private law purposes, and may trigger different regulatory (e.g., consumer protection) perimeters or require different requirements of form and process. In particular, some of these NFTs would likely fall into our definition of “cryptoassets” (in particular, the in-game object that does not “represent” anything but just exists in digital form) while others would fall into some other category of “digital assets” (being a right in a thing or against a person that exists “off-chain”).
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The ultimate question at the heart of most cases concerns the property law treatment of cryptoassets, which is a preliminary issue for other questions of substantive and procedural law to be addressed. This question informs the other two trends: (ii) in the Anglo-Commonwealth world, there is a trend towards closer engagement with some of the “downstream” questions relating to cryptoassets’ treatment in the law of property; (iii) in the civil law world, the trend is towards finding workarounds to facilitate the ordered legal treatment of cryptoassets in the more restrictive conceptual schemata typical of Civilian property law.
From Cryptoassets in Private Law: Emerging Trends and Open Questions from the First 10 Years by Jason G Allen, Henry Wells, Marco Mauer :: SSRN.
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This trend is most clearly observable in England and Wales and the Commonwealth, where it manifests as the “tertium quid question”. Courts in these jurisdictions, often in the context of an application for some interim order, have confronted the “property status question” most directly and made deeper forays into the conceptual questions that cryptoassets raise as purely intangible “digital commodities”. Despite not fitting neatly into the two recognised categories of personal property (namely, “choses in possession” and “choses in action”), cryptoassets clearly warrant recognition as (some kind of) “property”. Such reasoning has gained noticeable traction within Anglo- Commonwealth jurisdictions and we may be at the cusp of a major development in the taxonomy of personal property law—whether led by judicial reasoning or legislative reform