Diritto & Internet

Online purchase of derivative financial instruments and written form

Yet another ruling correctly states the principle that a valid banking and financial contract requires a written procedure and consequently, if the contract is computerized, a digital signature.

As seen in the news reported by the Italian press, with ruling No 1503/2011, the Court of Reggio Emilia has declared a contract for the purchase of covered warrants null and void.

It seems that the investors had submitted purchase orders online, entering the web portal of the authorized intermediary using their authentication credentials and had then given their consent with a simple “click”.

The ruling stating that a digital signature is required for the validity of an online contract requiring the written form under penalty of nullity, can be supported, especially keeping in mind that Presidential Decree No 513 of November 10, 1997 was in force at the time.

In other words, this ruling should be contextualized in the light of the law in force at that time in order not to provoke hasty interpretations. In fact, if the same case was before the court today, we would need to keep in mind that the law has changed and that the regulatory provision applicable would now be that of art. 21 of the Digital Administration Code. Consequently, as we have stated in this blog on numerous occasions, an advanced electronic signature would be sufficient. In this respect, we would hope that a correct ruling confirming a provision which is constant regarding the acquisition of derivative financial instruments would not give rise to misleading interpretations.

 

Annarita Ricci

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Scientific Director
Prof. Avv. Giusella Finocchiaro
Editorial Curator
Dott. Giulia Giapponesi