Abstract
We propose to use the terms Verfügungsmacht (power to dispose, analogous to possession) and Verfügungsrecht (right to dispose, analogous to ownership) to discern whom a Bitcoin belongs to in case of a bankruptcy. Using the example of Tezos, we demonstrate that the storage location of private keys alone does not suffice to meaningfully answer the question to whom the foundation's assets belong. Instead, the context and the contractual arrangement, from which the right to these assets can be derived, also need to be taken into account. This view provides a legal basis for the storage of Bitcoins on behalf of a client without taking them onto one's balance sheet, ensuring that the client's assets are not included in the bankruptcy estate. Furthermore, we classify the Internet currency Bitcoin as a rival, fictive, intangible asset sui generis and opine that there is a gap in the law regarding Aussonderung (removing an asset from the bankruptcy estate and returning it to the rightful owner) and Admassierung (adding an asset to the bankruptcy estate from a third party) of Bitcoins. Courts and bankruptcy administrators are encouraged to fill this gap in accordance with article 1 of the Swiss Civil Code when faced with Bitcoins in a bankruptcy case.
Meisser, Luzius