A decision by an Italian Court (Court of Catanzaro, 30 April 2012, downloadable HERE) has rekindled the interest of commentators on the issue of unfair contract terms, giving rise to lively comments.
The decision regarding the suspension of a professional account assigned to a dealer by the operator eBay leads to certain reflections on the validity of the unfair terms in online contracts between professionals.
In fact the decision states that “with regard to unfair terms online, the prevailing academic interpretation – to which the Court adheres – deems that the signing of the content of the contract is not in itself enough sufficient – rather, it is necessary to specifically sign with a digital signature. Generally speaking, therefore, an electronic contract is completed through the virtual contractual button, but unfair contract terms will be effective and binding only if specifically approved through the digital signature”.
Although the finding of the Court of Catanzaro did not have a decisive value for the purposes of the conclusions reached, some of the judges’ considerations indeed provide food for thought.
In fact analysis of article 1341, paragraph 2 of the Italian Civil Code should, in fact, lead to different conclusions, or at least justify a less assertive orientation.
According to art. 1341 of the Italian Civil Code, the standard contracts require “specific approval in writing” and not “specific signing in writing” for the unfair contract terms to be valid. One might therefore consider an electronic signature sufficient, even considering the final decision on the suitability of electronic documents signed with an electronic signature falls to the responsibility of the judge (Legislative Decree no. 82 of 2005 of the Digital Administration Code).