This blog has been written by Dr Alisdair MacPherson and Professor Burcu Yüksel Ripley as part of a SPICe academic fellowship. Their briefing Digital Assets in Scots Law considers the treatment of digital assets in Scotland, and in other countries, in more detail.
What follows are the views of the authors, not of SPICe, or the Scottish Parliament, or any other organisation or group to which the authors are affiliated.
Clarifying how Scots law deals with digital assets
On 30 September 2025, the Scottish Government introduced the Digital Assets (Scotland) Bill in the Scottish Parliament. The Bill aims to clarify that “digital assets” are a type of property in Scots law and to provide relevant rules.
Digital assets, including cryptocurrencies like Bitcoin, have emerged in recent decades and have become widely known and increasingly common. However, their unique features mean that countries around the world (including England and Wales) are having to adapt their laws to accommodate them. The Bill is a positive step towards achieving this in Scotland.
While some digital assets are controversial, there are different types of digital assets used in a variety of contexts. It is therefore important for anyone dealing with digital assets to know the relevant legal rules. This applies to people (including consumers) investing in such assets, divorcing spouses who hold them, individuals inheriting assets, and creditors seeking to enforce payment against a person with digital assets.
If passed, the Bill will resolve some of the current issues regarding property law, but others will remain in various areas of law.
The Bill’s provisions
The Bill is a short one, with 9 sections. It addresses most of the matters identified in the Scottish Government’s public consultation (2024-2025), but not always in the ways that may have been anticipated, given the consultation’s content and the responses received.
Definition
Under section 1 of the Bill, a digital asset is “a thing” that:
- arises from an electronic system that makes it rivalrous, and
- exists independently from the legal system.
In combination, these are the defining features of digital assets and enable them to be distinguished from other types of property (including other incorporeal moveable property – see below). According to section 1(2), an electronic system makes something “rivalrous” if the system keeps an “immutable” (unchanging) record of transactions and the record is used to ensure that if someone uses the thing by, for example, transferring or spending it, the person can no longer use the thing in the same way again (such as by spending it twice).
Property categorisation
Scots law recognises four inter-related categories of property, as shown in the image below.
Figure 1: Scots law property categories
In section 2, the Bill confirms digital assets as incorporeal moveable property. This reflects their intangible nature and places them in a broad category of property that includes diverse items such as legal claims (for example to be paid money), company shares and intellectual property rights (like copyright, patents and trademarks).
Nevertheless, there is recognition that special rules are required for digital assets, since they differ from other types of incorporeal moveable property.
Presumption and acquisition of ownership
If a person has “exclusive control” of a digital asset, they will be presumed to own the asset under section 3. However, this presumption could be rebutted by evidence showing that the person with such control is not actually the owner.
Rather than setting out a bespoke rule identifying the requirements to transfer ownership, as the consultation seems to have envisaged, the Bill provides that digital assets are to be treated as corporeal moveable property for the acquisition of ownership (section 4). To achieve this, exclusive control is to be treated as the equivalent of physical possession. Consequently, if the owner of a digital asset intends to transfer ownership to someone else and gives them exclusive control, that person will become the new owner.
The Bill does, however, provide that digital assets are not to be treated as corporeal moveables under any legislation (section 4(3)), for example, the Sale of Goods Act 1979.
The section on acquisition does not draw a distinction between voluntary transfer and involuntary transfer (such as through debt enforcement and within insolvency procedures). While it appears to apply to both types, there are points of difficulty as to how involuntary transfer would be achieved.
Acquiring in good faith and for value
The Bill would allow for a person to acquire ownership from someone who is not the owner, if the acquirer obtains exclusive control of the asset from them (section 4(2)). However, the acquirer would have to be in “good faith” (in other words, be unaware that the person they obtained the asset from is not the owner) and give “value” (pay) for the asset.
So, if B steals A’s asset, then C, a purchaser from B, could become owner if the conditions are met. The Bill chooses to protect C’s rights ahead of A’s, but B would remain potentially liable in civil and criminal law. The protection given to an acquirer can be justified by the ease of transfer of digital assets, the fact that they are often held “pseudonymously” (so that people may not know exactly who they are transacting with) and the unfairness to an acquirer if they are not protected.
Exclusive control
Exclusive control is a key feature of ownership within the Bill. Section 5(1) provides that a person has control if they have the ability to initiate:
- a transfer transaction within the electronic system giving rise to the asset, or
- if the system does not facilitate transfer transactions, a divestiture transaction within the system.
A divestiture transaction is one which results in no one being able to deal with the asset in the future.
Importantly, a person’s control will be exclusive if they are the only person with control of the digital asset. If someone has control, it is presumed to be exclusive, which will help facilitate transfers, given the role of exclusive control in that context.
What is not included in the Bill
In contrast to the proposals in the consultation, the Bill does not include provisions on the application of general principles of Scots private law or specifically regarding the holding of digital assets in trust. It seems that these were considered unnecessary, as they will apply anyway, given the confirmed property status of digital assets.
Various other issues are not tackled, including the challenging areas of debt enforcement, bankruptcy, civil court procedure and private international law (which sets the rules for issues like which country’s law applies when there is a foreign element to a dispute). As these are unlikely to be covered in this phase of reform, they should form the basis of later reform efforts. Further details regarding digital assets in those areas of law have been provided in a recent SPICe briefing and academic article.
Next steps for the Bill’s parliamentary journey
The Bill is now expected to be scrutinised at Stage 1 by the Economy and Fair Work Committee. Given its relatively narrow scope and the time available for its passage through Parliament, the Bill cannot reasonably be expected to address all of the complicated questions concerning digital assets in Scots law. It is hoped that it will provide a clear property law foundation for digital assets, which can be built upon by further reforms. This will make the Scottish legal system more capable of meeting the challenges of the digital age.
Dr Alisdair MacPherson
Professor Burcu Yüksel Ripley
Featured image (cropped) licensed under Creative Commons (CC BY-ND 4.0). No attribution available.