Of Crocodiles and Cryptocurrency, Or, Property is a Relationship between Persons in Respect of Things, and Why It Matters

Abstract

In those cases where courts are asked to decide whether property exists in a novel set of circumstances or in respect of novel assets, the question arises whether property is a relationship between persons and things or between persons in respect of things. Cryptocurrency offers a topical example of this ‘property question.’ In answering it, many courts the world over seem to follow—either explicitly or implicitly, a statement found in the High Court of Australia’s decision in Yanner v Eaton, a case involving whether wild crocodiles could be property for the purposes of a native title claim. The High Court said that ‘‘property’ is a comprehensive term [which] can be used to describe all or any of very many different kinds of relationship between a person and a subject matter.” But can that be so? Here I want to explain why it cannot, and why it matters.