Cryptoassets and the Renaissance of the Tertium Quid?

Abstract

The explosion of interest in cryptoassets has revived interest in a curious notion in the law of personal property: the tertium quid or personal property that is neither a thing in possession nor a thing in action. This renaissance, however, has not taken into account historical debates over the same or the law’s experience of the same in respect of patents. Once these lessons are properly accounted for, it will be clear that there is nothing to stop the law from treating cryptoassets as things in action and the law can focus on the more important question of what rights said thing in action entails. Stepping back from the sterile tertium quid debate also enables us to more clearly see other urgent work in relation to the category of things in action as a whole, work that said classification does not help with.

Keywords: thing in possession, thing in action, tertium quid, patents, cryptoassets

JEL Classification: K11, K41