Digital assets in Scots private law: consultation

Section 3: Consultation Questions

Question One

Is primary legislation the most effective way to resolve uncertainty about the status of digital assets in Scots private law?

If you do not agree, please explain your reasons.

Question Two

Should any possible future primary legislation have a narrow scope of application by being limited to a statutory definition of digital assets as property, rules governing the transfer of ownership, and provisions confirming that the principles of Scots private law continue to apply to digital assets?

If you do not agree, please explain your reasons.

Question Three

For the purposes of Scots property law, should digital assets be classified as incorporeal moveable things?

If you do not agree, please explain your reasons.

Question Four

Should any future statutory definition of the category of digital assets considered an object of property be technologically neutral and avoid being too prescriptive?

If you do not agree, please explain your reasons.

Question Five

The ERG proposed that digital assets be defined with reference to two limiting characteristics. The first characteristic would be that the digital asset is capable of independent existence. Should this be a defining criterion?

If you do not agree, please explain your reasons.

Question Six

The second characteristic would be that the digital asset is of rivalrous nature, in that the use or consumption of the digital asset by one person will prejudice the use or consumption of that same asset by another person. Should this be a defining criterion?

If you do not agree, please explain your reasons.

Question Seven

Should any possible future primary legislation refer to the category of digital assets which are to be classed as objects of property for the purposes of Scots property law as “digital assets”, without creating any other defined term to describe this category, such as “digital objects”?

If you do not agree, please explain your reasons and what defined term or terms you would consider more appropriate to use.

Question Eight

Should control over a digital asset generally be the basis for establishing ownership of that asset?

If you do not agree, please explain your reasons.

Question Nine

Should the voluntary transfer of the ownership of a digital asset require the transfer of control over that asset from the current owner to another person, coupled with the current owner intending to transfer ownership to that other person?

If you do not agree, please explain your reasons.

Question Ten

Should a person who acquires control of a digital asset in good faith and for onerous consideration be recognised in Scots property law as acquiring the ownership of that digital asset, even where the transferor from whom they acquired the digital asset was not the owner?

If you do not agree, please explain your reasons.

Question Eleven

Should any possible future primary legislation make provision confirming that the principles of Scots private law continue to apply to digital assets, so far as those principles are consistent with the characteristics of those assets?

If you do not agree, please explain your reasons.

Question Twelve

Should any possible future primary legislation make provision to clarify that digital assets which qualify as property may be held on trust?

If you do not agree, please explain your reasons.

Question Thirteen

Should any possible future primary legislation contain any other substantive provisions within devolved competence which are not set out in this consultation? If so, please explain what additional provisions you consider would be needed and why they would be needed.