A-level student Ishaan Modi explores how property law needs to adapt to function in the modern age
Modern property law is based off an outdated foundation in Roman law. The principle dominium meant ownership. You could own a field, a slave or a sack of coins, if you could touch it or claim it through a hierarchy of legal rights. That foundation, carved into the stones of the forum and the Twelve Tables, still underpins how we think about property today.
Fast forward to 2025, and our assets look very different. Your most valuable “property” might now be a crypto wallet you can’t hold, a JPEG on the blockchain, or a smart contract line you don’t even understand. Yet UK law is still trying to squeeze these digital anomalies into categories built for land deeds and livestock.
When the system is challenged, it glitches.
If we look at injustices in the case; Tulip Trading Ltd v Bitcoin Association for BSV [2022] EWHC 667 (Ch), which laid bare the legal system’s struggle to grasp decentralised assets like crypto. Tulip, a company associated with Dr Craig Wright (who claimed to be Bitcoin’s inventor, despite a High Court ruling to the contrary), claimed it had lost access to over £3 billion in Bitcoin after its private keys were allegedly compromised by a hack. But instead of pursuing conventional claims in restitution or fraud, Tulip took a novel route: it argued that the developers of several major blockchains owed a fiduciary duty and/or duty of care to users, and were therefore obliged to rewrite or fork the protocols, a request that, if granted, would have radically redefined the role of developers in decentralised systems”.
The court said no
The High Court dismissed the claim: developers owed no fiduciary (special loyalty) or tortious (duty of care) obligations to users, and compelling protocol changes would destroy decentralisation. Tulip was left with nothing. Or rather, left with something the law refused to recognise. On appeal, courts allowed the argument to proceed but confirmed deep uncertainty about duties in decentralised contexts. This is the law shrugging at multi-billion-pound losses. No help, no remedies.
The decision wasn’t just a loss for one company. It was a warning to all of us operating in a system where assets are borderless and intangible, but legal protections still depend on ancient categories and 20th-century logic. On appeal, the Court of Appeal took a more cautious approach. It did not decide that such duties did exist, only that the case should proceed to trial. Lord Justice Birss noted that in “at least some circumstances”, it may be arguable that developers have sufficient control to be burdened with legal duties, especially when a protocol is heavily reliant on a small developer group. That nuance opened the floodgates for a broader debate: how should English private law treat those who control access to code that governs billions?
The deeper issue here is that UK law still views property through the Roman categories of res corporales (tangible things) and res incorporales (rights), these once made sense for fields and debts. But trying to classify a blockchain token as a “thing” or a “right” is like fitting a square peg into a coin slot. Tulip Trading revealed that mismatch: code-only assets falling through legal cracks, holders left stranded, yet courts wisely preserve decentralisation. The challenge now is to bridge that gap: craft rules that protect people’s digital wealth while respecting the innovations’ core principles, however the wider question is, where do you put a line of blockchain code that isn’t physical, isn’t a legal claim, and exists only because a decentralised network agrees it does?
The developers in Tulip weren’t liable. But the judgment exposed a deeper void: the gap between control and accountability. Developers often do have the practical ability to influence how protocols function. But English law, so far, has lacked a consistent doctrinal framework for determining whether that control creates enforceable obligations. Are they trustees? Fiduciaries? Or simply contributors to open-source infrastructure? The lack of clarity is not merely academic. It creates a chilling effect on recovery, accountability, and investor confidence.
Reforms are coming — but still thinking in coins
To its credit, the Law Commission has recognised the problem: digital assets don’t fit “things in possession” or “things in action,” and need a third category of personal property. A Digital Assets Bill aims to confirm this new category in statute, and courts now grant freezing orders on NFTs. But these steps still lean on ancient concepts, simply stretching old molds to hold new shapes. Questions remain: How do you “possess” a wallet? When can a smart contract error be undone? How can we define duties for platforms or developers without killing innovation?
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Smart contracts: the supposed self-executing miracle, pose further challenges. These scripts don’t “negotiate” or “reason.” They execute. But what happens when a contract misfires, or contains an error? Traditionally, courts can void contracts based on a mistake or misrepresentation. But how do you void a contract that has already executed autonomously across 100,000 machines? Legal scholars like Werbach and Cornell have argued that smart contracts require a new theory of ex post override mechanisms, or risk creating automated injustice.
Then there’s the rising spectre of DAOs (Decentralised Autonomous Organisations) which behave like corporations without incorporation, leadership, or physical location. Who’s liable when a DAO-funded action causes harm? No answer yet. Existing principles of corporate veil piercing, vicarious liability, or unincorporated association law are unfit for purpose. The result is not just uncertainty, it’s legal invisibility.
While the law hesitates, the market doesn’t. Teenagers flip NFTs for profit. Crypto wallets hold billions in dormant assets. Entire virtual economies grow without any meaningful redress system for loss, error, or theft. For now, users navigate this ecosystem at their own risk — a system where value can evaporate without remedy, and where courts sometimes shrug because no existing doctrine quite fits.
So, why should you care?
Because this isn’t theory anymore. It’s your online wallet. Your intellectual property. Your gaming assets. Your savings.
If you lose them today, there’s a real chance the law might not recognise they ever existed in the first place. Or that it will shrug and say, we can’t help you.
The Roman system was resilient because it evolved. But for UK law to stay relevant, and trusted, it must evolve faster. It must accept that not all property is tangible. That code can be ownership. That decentralisation doesn’t mean legal disintegration.
Until then, our legal system will remain a powerful machine running the wrong software — still thinking in coins, while the world runs on code.
Ishaan Modi is an A-level student currently studying Classical Civilisation, Economics, and Maths. He has a strong academic interest in both the legal profession and the ancient world, particularly in how Roman and Athenian legal frameworks continue to shape modern thinking around ownership, contracts, and power structures.
The Legal Cheek Journal is sponsored by LPC Law.
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