The expansion of the digital economy has given rise to new forms of wealth. Domain names, cryptoassets, virtual goods in metavers: these dematerialised assets represent a very real economic value and, consequently, a major challenge for debt recovery. For a creditor, apprehending these intangible assets means navigating a complex legal and technical environment, where conventional procedures need to be adapted. The seizure of these assets, while possible, raises novel issues that require a specialised approach and an understanding of the mechanisms specific to each category. A distinction needs to be made between the different enforcement methods, as the logic of the enforceable seizure and precautionary seizure are not identical. The stakes are high and require legal support tailored to the specific needs of each company. complex asset seizuresbecause these goods are part of the wider family of seizable intangible rights.
Domain names: seizability and enforcement procedure
A domain name, which is the address of a website, is often a central element of a company's identity and value. Its seizure is a formidable enforcement measure for a creditor, capable of paralysing the debtor's online activity.
The domain name as an intangible asset and its ownership rights
In legal terms, a domain name is not an asset like any other. It qualifies as an intangible asset, a distinctive sign in the same way as a trademark or a trade name. Although it does not confer a right of ownership in the traditional sense of the term, its holder has an exclusive right of use, which is transferable and therefore valuable. This asset value makes it part of the debtor's assets and, as such, subject to seizure. Its value can sometimes be considerable, depending on its notoriety, the traffic it generates or its simplicity. Recognition of this patrimonial nature is a fundamental step: it paves the way for enforcement proceedings.
The role of registrars and AFNIC
To understand how to register a domain name, you need to identify the players who manage it. In France, for .fr domains, the Association Française pour le Nommage Internet en Coopération (AFNIC) is the registrar. However, the direct contact for the domain name holder, and therefore the target of the registration procedure, is the registrar. It is with this company (OVH, Gandi, etc.) that the domain name was purchased and that it is technically managed. The registrar is therefore considered to be the third party in charge. It is the registrar that holds and administers the right of use on behalf of the debtor. Its role is therefore central to the implementation of the enforcement measure.
The procedure for the seizure and forced sale of domain names
The seizure of a domain name follows the same procedure as the seizure of intangible rights. A court commissioner, mandated by the creditor with a writ of execution, serves the writ of attachment directly on the registrar. This deed makes the domain name unavailable. In practical terms, the registrar is prohibited from transferring or deleting the domain name. The debtor is informed of the seizure within eight days and has one month to contest it. If no objection is lodged, or if it is rejected, the creditor may initiate the sale procedure. The forced sale of intangible rightsThe sale of a company, such as a domain name, is generally carried out at public auction, orchestrated by a court commissioner or other selling officer, in order to liquidate the assets and pay off the creditor.
Cryptoassets and cryptocurrencies: challenges and prospects
Cryptoassets, of which cryptocurrencies such as Bitcoin and Ethereum are the best known, pose challenges of an entirely different order. Their decentralised, volatile nature, protected by complex cryptographic mechanisms, makes it particularly difficult for traditional enforcement channels to deal with them.
Legal definition and status (non-currency, non-means of payment)
The 2019 PACTE Act introduced an initial legal definition of digital assets into the Monetary and Financial Code. A digital asset is defined as "any digital representation of value which is not issued or guaranteed by a central bank or public authority, which is not necessarily attached to legal tender and which does not have the legal status of money, but which is accepted by natural or legal persons as a medium of exchange and which can be transferred, stored or exchanged electronically".. It is therefore clear that cryptoassets are not currencies. They are intangible movable property, which confirms their seizability in principle, but their regime remains distinct from that of traditional financial instruments.
Practical obstacles to data capture (encrypted keys, decentralisation)
The main difficulty lies in the blockchain technology itself. Possession and control of a cryptoasset depend on holding a private key, a complex and secret sequence of characters. Without this key, it is impossible to access or transfer assets. However, a debtor may hold his private keys himself (on a hardware wallet such as a Ledger or a simple file), without going through an intermediary. In that case, how can they be forced to reveal them? The decentralised nature of the system makes it impossible to turn to a central authority that could block the funds. Locating the assets is another headache: they are not "in" one country, but on a globally distributed register.
The need for judicial intervention to gain access to keys
Where the cryptoassets are held directly by the debtor, their actual seizure may require physical coercion or a strong court order. The court may order the debtor to reveal his private keys, subject to a fine. Refusal to comply may even, in certain circumstances, constitute a criminal offence. The situation is simpler when the assets are held by an intermediary, such as a centralised exchange platform (Coinbase, Binance, etc.). This platform then becomes the garnishee. The court commissioner can serve it with a writ of attachment, ordering it to freeze the debtor's assets. The effectiveness of the measure will depend on the cooperation and legal location of the platform.
Procedures for the forced sale of cryptoassets (listing, auction)
Once cryptoassets have been seized and made unavailable, the question arises of how to realise them. Their extreme volatility makes forced sale delicate. The procedure must be swift to avoid sudden depreciation. Public auction remains the principle, but it needs to be adapted. Specialised platforms and auctioneers trained in this ecosystem are beginning to organise specific sales. The bid price is determined by the cryptoasset's quotation on the main exchange platforms at the time of the sale. The proceeds of the sale are then consigned before being distributed among the creditors.
Virtual goods: recognition and seizability in metaverses and video games
With the rise of online games and metavers, a parallel economy has developed around virtual goods: skins, land, unique objects, etc. These items, sometimes acquired for considerable sums, have an asset value that attracts the attention of creditors.
The debate on the ownership of virtual goods ('magic circle')
The key question is the legal status of these assets. Do players really own their virtual objects? The doctrine is divided. Often, the general terms and conditions of use (GTCU) of platforms stipulate that the publisher remains the owner of all the elements of the game and only grants players a simple, revocable and non-transferable user licence. This contractual analysis is an obstacle to the recognition of a right of ownership and therefore to seizure. However, another view is emerging, considering that the player's investment of time and money gives him a genuine property right in the goods he has acquired and can trade, forming a "magic circle" in which the internal rules of the virtual universe create enforceable rights.
The economic value of virtual goods and transactions between players
Regardless of the debate over ownership, the economic value of these goods is indisputable. Secondary markets, sometimes tolerated, sometimes forbidden by publishers, allow players to buy and sell these items for real money. A rare skin in a popular game or a plot of land in a popular metaverse can be worth several thousand euros. This economic reality is forcing the law to adapt. If an asset has value and can be sold, it should, in principle, be possible to seize it to pay off the debts of its owner.
The input procedure and the role of the game/wallpaper editor
In practice, the seizure of virtual goods would target the publisher of the game or platform as the seized third party. It is the publisher that has technical control over players' accounts and can transfer ownership of an object from one account to another. A creditor could serve a writ of attachment on the publisher, ordering it to block the disputed item on the debtor's account and prevent its sale. The next phase would involve organising the forced transfer of the object to a buyer's account, after an auction. This procedure remains largely theoretical and comes up against the Terms and Conditions of Use and the potential reluctance of publishers, who have no interest in facilitating such operations.
Legal and practical issues surrounding the capture of digital assets
The seizure of digital assets, whatever their form, raises cross-cutting issues that complicate the task of creditors and their advisers.
Identification of the garnishee and territorial jurisdiction
One of the main challenges is to identify the right third party. For a domain name, it's the registrar. For cryptoassets, it is potentially an exchange platform. For a virtual good, it's the game publisher. But these entities are very often located abroad. This raises the question of the territorial jurisdiction of French courts and the effectiveness of a French court ruling against a company based in the United States, the Cayman Islands or Asia. Cross-border enforcement then becomes a major obstacle, requiring lengthy and costly international cooperation procedures (exequatur), if they are even possible at all.
Adapting traditional seizure rules to these new assets
French enforcement law, particularly the seizure of intangible rights, provides a sufficiently flexible general framework for dealing with these new assets. However, its practical application requires constant adaptation. Judicial officers and lawyers must not only master the law, but also understand the underlying technology in order to draft effective deeds and guide judges. The dematerialisation, decentralisation and relative anonymity offered by some of these assets require the law to be creative in ensuring that a debtor's digital assets do not become an impregnable fortress for his creditors.
The seizure of digital assets is a rapidly developing field, at the crossroads of contract law, enforcement and technology. Each situation is unique and presents specific challenges that require detailed analysis and a tailor-made strategy. To secure the recovery of your debts from a debtor holding this type of asset, support from an expert law firm in complex enforcement procedures is essential.
Sources
- Code of Civil Enforcement Procedures (in particular the articles on the seizure of intangible rights)
- Monetary and Financial Code (particularly articles relating to digital assets)
- Commercial code
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