Blockchain Tokens From the Perspective of German Civil Law: An Updated View

Abstract

Tokens are increasingly being generated on the basis of blockchain technology, which are intended to embody certain rights and obligations as cryptographically secured electronic coupons or digital coupons or vouchers . This paper provides an overview of the current state of affairs and the legal discussion of recent years and examines the extent to which blockchain tokens can be included under the existing German civil law framework of the BGB (German Civil Code).

The key question is how goods can be legally represented ("tokenised") digitally and effectively by tokens instead of in documents. There are several approaches to make tokens marketable. Among them are also those that let the "right embodied in the token" follow the "right to -or ownership of- the token". This is followed by the question as to whether the data on the blockchain can provide sufficient evidence that may enable the purchase in good faith, since without that, secondary market trading is not viable.

The article concludes with an outlook on possible solutions de lege ferenda, and looks into the question whether the Anti Money Laundering Directive 5 and the subsequent changes re. „Crypto Assets“ in German’y Banking Act, which came into effect Jan 01, 2020, have any civil law impact on tokens.

This is an updated English version of https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3361976.

Keywords: Blockchain, Tokens, Crypto Assets, German Civil Law, KWG, securities

JEL Classification: K