General conditions of contract in national and international online sales. What if the Vienna Convention applies?
The regulation of general terms and conditions in e-commerce involves not a few insignificant complexities.
If on the one hand it seems easy enough from a practical point of view to ensure that the general terms and conditions of sale are knowable by means of certain expedients, it is certainly more complex and less easy to ensure that vexatious clauses are expressly approved in writing in accordance with the dictates of the second paragraph of Art. 1341 of the Civil Code.
The notion of general terms and conditions of contract ("GTC") is included in our legal system in Art. 1341 of the Civil Code. General Terms and Conditions of Contract are to be understood as a set of contractual clauses, which are by their nature generalitiesas they are intended to apply to all contracts of a given series, and of one-sidednessas they are only prepared by a contractor, the so-called predisponent.
The formula general terms and conditions thus expresses the practical phenomenon of the prior and unilateral formulation of a uniform negotiating content intended to be used to regulate an indefinite series of relationships belonging to the predisposer.[1]
1) When are they valid?
Art. 1341 of the Civil Code lays down, in relation to the content of general terms and conditions, two different requirements of effectiveness. It provides, in para. (1), for the general requirement of effectiveness of knowledge or cognizability and, in para. (2), for the particular requirement of effectiveness of specific approval in writing in the case of so-called vexatious or so-called onerous clauses.
1.1. Knowability and knowledge.
Knowability consists in the possibility for the adherent to acquire knowledge through the use of ordinary diligence. Therefore, for all contracts that are concluded by means of uniform contractual terms and conditions prepared by the contracting party, the favourable principle dictated by the first paragraph of Art. 1341 of the Civil Code applies, according to which the actual content of such clauses is enforceable against the other contracting party even if the latter, without having knowledge of them, should nevertheless have known them by using ordinary diligence.[2]
This, however, presupposes an activity on the part of the predisposing party that is appropriate to permit knowledge, taking into account the diligence that is normal to expect of the average adherent with reference to the type of economic transaction performed.[3]
1.2. Written proof and unfair terms.
Para. (2) regulates the specific situation in which the terms themselves are vexatious and provides that they, in order to be binding on the other contracting party, must be approved particularly in writing, in the knowledge that an objectively onerous obligation is being undertaken.[4] The list of unfair terms (which is exhaustive and not subject to extensive interpretation)[5] is specifically concerned with:
- limitations of liability (Art. 1229);
- power to withdraw from the contract (Art. 1373) or to suspend its performance (Art. 1461), or impose forfeitures on the other contracting party (Art. 2965);
- limitations on the right to raise objections (Art. 1462);
- Restrictions on freedom of contract in relations with third parties (arts. 1379, 1566, 2596), tacit extension or renewal of the contract (arts. 1597, 1899), arbitration clauses (art. 808 of the Code of Civil Procedure) or exceptions to the jurisdiction of the courts (arts. 1370; 6, 28, 29, 30, 413 of the Code of Civil Procedure).
Since one of the characteristics of the GTC is their unilateral nature, the need for written approval of unfair terms is excluded whenever the conclusion of the contract was preceded by a negotiation which specifically addressed the terms that would otherwise require an independent signature, whereas the signature remains indispensable for terms with vexatious content to which the party has adhered without any discussion.[6]
As to the manner of approval, it is generally held that there is no need for a specific signature for each vexatious term and that the requirement of specific approval in writing is also fulfilled in the case of numerical references to terms provided that they are accompanied by an indication, albeit summary, of their content.[7]
2) 1341 of the Civil Code and electronic commerce.
Applying the principles summarised above to the electronic marketplace entails not a few insignificant complexities: in particular, the double signature of vexatious clauses in telematic contracts is a very complex problem that has been debated both in doctrine and in jurisprudence.
If in a sale onlineOn the one hand, it seems quite easily solvable from a practical point of view to ensure the cognizability under Art. 1341 para. 1 of the Civil Code of the general terms and conditions of the contract by means of certain expedients (e.g. the insertion of link on the site or within the order, which refer to the GTC), it is certainly more complex and less straightforward to ensure that vexatious clauses are expressly approved in writing in accordance with the dictates of the second paragraph of the aforementioned article.
The solution that is normally adopted on e-commerce is to set up two form separate, one of which is intended for the approval of the general terms and conditions as a whole (by ticking a box and accepting with a "click"so-called "click-wrapping") and one of the vexatious clauses, which are then separately accepted (albeit by means of a "click").
Jurisprudence has had several occasions to pronounce on whether acceptance by click complies with the formal requirements imposed by Art. 1341(2) of the Civil Code, recording for the time being quite opposing positions.
There is a ruling by the Justice of the Peace of Trapani stating that:
"checking a box by clicking cannot be equated with the double signature requirement of Art. 1341 of the Civil Code, since it cannot be equated with the signature of the contracting party who has not prepared the text of the agreement."[8]
This guidance echoed a somewhat less recent decision of the Court of Catanzaro in 2012,[9] in which the plaintiff had complained of the vexatious nature of the clause contained in the terms of use of the principal's (eBay's) website, which allowed the company to suspend or delete at any time, even without justification, theaccount with which the seller could use the platform.
The Court had upheld the application, finding the abusive nature of the clause and noting that eBay had not set up a valid double acceptance mechanism pursuant to Art. 1341(2) of the Civil Code, through specific approval of the adherent of the GTC by means of digital signaturesince only the latter would have guaranteed the actual acceptance of the provision and the identifiability of the subscriber.
In the writer's opinion, given that the text of Art. 1341(2) of the Civil Code does not require the specific signing of the unfair terms, but rather their approval, the digital signature should not be considered a necessary element to ensure the fulfilment of this requirement, but rather to overcome a different (and further) obstacle, i.e. relating to the proof of the traceability of the signing of an electronic contract to a well-identified person.[11]
To this end, given that such 'identification' can also be carried out in a more streamlined manner and more in line with the business needs of both parties, it could be considered that the validity of the acceptance of the general terms and conditions by click and their traceability to a particular party could be more 'strengthened' if this is collected, for instance, following a login with insertion of user name e password by the member.[12]
It should be noted, however, that more recently, in 2018, the Court of Naples, in a similar case (still concerning eBay's terms of use), instead adopted a very different orientation, considering it unnecessary to introduce the requirement of a digital signature to accept the vexatious clauses, since this solution would have led to:
"transforming all telematic contracts into binding form contracts as a matter of pretext, requiring for their conclusion the use of a sophisticated instrument, not yet massively widespread among the public, and thus effectively paralysing the development at national level of an entire sector of trade that is becoming increasingly important at planetary level".
Again in this sense, we read in a decision of the Justice of the Peace of Partanna,[10] which had held that the requirement of written form under Article 1341(2) of the Civil Code was sufficient through
"a double assent, by pressing the appropriate button: one of adhesion and the other of approval of the so-called vexatious clauses."
3) 1341 Civil Code and international trade
3.1. Waiver of Jurisdiction.
After having, albeit very briefly, analysed the main issues concerning the limits of the usability of the GTC in the context of e-commerce, we go on to examine the possibility of waiving jurisdiction in favour of the judicial authority of a Member State by simply inserting an extension clause in the general terms and conditions, to be submitted to the adherent for acceptance by a simple click.
Article 23 of the Regulation Brussels I bisprovides that the agreement conferring jurisdiction must be concluded:
- "In writing or orally with written confirmation,
- or in a form permitted by the practices established between the parties, or
- in international trade, in a form permitted by a usage which the parties knew or ought to have known [...].
- The written form includes any electronic communication that allows for a durable record of the clause conferring jurisdiction"
The European Court of Justice[13] was asked to answer whether the click-through procedure, by which a buyer has access to the general terms and conditions of sale appearing on an internet site by clicking on a hyperlink opening a window, fulfils the requirements of Article 23(2) of the Brussels I Regulation.
The case concerned a car dealer established in Germany who, after having purchased on the defendant's (a Belgian-based company's) website, sued the seller in the German court of Krefeld. The seller entered an appearance arguing that the German courts did not have jurisdiction, since Article 7 of the GTC contained a clause conferring jurisdiction in favour of the court in Leuven (Belgium).
The European Court of Justice confirmed the jurisdiction of the Leuven court, holding that the procedure of acceptance by clicking on the general terms and conditions of a contract of sale concluded electronically, which contain a clause derogating from jurisdiction, constitutes an acceptance in writing of those terms and conditions, since they are electronic communications that do not open automatically upon registration on the website, can be saved or printed before the conclusion of the contract and therefore constitutes an electronic communication within the meaning of Article 23(2) of the Regulation.
This issue was also recently submitted to the United Sections of the Supreme Court,[14] which have held that an extension of jurisdiction clause (pursuant to Article 23 of the Regulation) is valid even if it is contained in the general terms and conditions of a contract, expressly referred to in the purchase order signed by the customer and accessible from the web address referred to therein, and that prior to the conclusion of the contract, the text of those terms and conditions can be printed and saved.
The waiver of jurisdiction, therefore, does not require the specific written approval of the adherent, pursuant to Article 1341(2) of the Civil Code, since it does not fall within the vexatious clauses exhaustively listed therein. It should be noted that, according to a well-established jurisprudential orientation,[16] Article 1341 of the Civil Code dictates a criterion of jurisdiction and that this does not affect the different criteria of jurisdiction applicable to international disputes. The United Sections themselves[15] have recently pronounced themselves on this point, stating that:
"The requirement of written form, prescribed by Art. 23 of the Regulation [...], is fulfilled if the clause itself appears in the general terms and conditions of the contract, if the contractual document signed by both parties contains an express reference to the aforesaid general terms and conditions bearing that clause, without the need for a specific approval in writing pursuant to Art. 1341 of the Civil Code.
3.2. General Terms and Conditions and the Vienna Convention.
In the event that the general terms and conditions of the contract regulate international purchase and sale relations, the Vienna Convention (if any) is applicable,[17] the question arises whether or not the double signature requirement of Article 1341 of the Civil Code can be invoked.
Indeed, the Vienna Convention, like any other uniform contract law convention, does not regulate all questions that may arise in connection with the contracts it regulates; this is of no little importance if one considers that the questions that are not regulated will have to be resolved on the basis of the law applicable to the contractual relationship.[18]
On the contrary, all matters that are expressly regulated by the Convention will prevail over the rules of domestic law, which will be derogated from by it; in order to understand whether Art. 1341 of the Civil Code can be invoked in such a case, it is essential to understand whether or not the GTC are governed by such rules of uniform law.
According to more authoritative doctrine,[19] although the general terms and conditions of contract are not expressly regulated by the Vienna Convention, since in Part II thereof the "formation of the contract" is exhaustively regulated. it will be necessary to refer to the rules of the Vienna Convention in order to understand what formal requirements the GTC must comply with.
On the assumption that Article 11 of the Vienna Convention establishes the principle of the freedom of formpart of the doctrine[20] and case law[21] therefore held that in the event of the application of the Convention, the requirement under Article 1341 of the Civil Code that any vexatious clause drafted by one of the contracting parties be subject to specific written approval must be regarded as waived.
Following this principle and applying it to online sales, it can therefore be considered that, in the event of the application of the Vienna Convention, unfair terms included in general terms and conditions would not require specific approval, and could therefore also be accepted by 'click'; it would still be the duty of the originator (pursuant to Art. 9) to ensure that the adherent has been put in a position to become aware of them, by means of a 'proactive' attitude by virtue of a general obligation of good faith and commercial cooperation.[22]
[1] Bianca, Civil Law, Giuffrè, Third Edition, p. 340.
[2] Court Milan 18.6.2009.
[3] Bianca, The General Conditions of Contract, 1979, p. 2.
[4] Cass. civ. 2003, no. 1833.
[5] Cass. Civ. 2013, no. 14038.
[6] Cass. civ. 2020, no. 8268.
[7] Trib. Rimini, 4.4.2020; Cass. Civ. 2018, no. 17939.
[8] Giudice di pace Trapani, 14.10.2019, with note by Quarta La conclusione del contratto di albergo per via telematica: pagamento anticipato e revoca della prenotazione, Danno e responsabilità, 2020, 2; Giudice di pace Milano 28.01.2019, Tribunale di Catanzaro 30.4.2012, in Res. Civ. e prev., 2013, 2015 ff.
[9] Trib. Catanzaro 30.4.2012, in Contratti, 2013, 1, 41, with a note by V. Pandolfini, Contratto on line e clausole vessatorie: quale firma (elettronica)?
[10] Justice of the Peace Partanna 1.2.2002.
[11] The Court of Catanzaro itself argues that the contract is invalid because only the digital signature would have guaranteed the actual acceptance of the provision and the identifiability of the signatory.
[12] On this subject, see also Cerdonio Chiaramonte, Specific written approval of unfair contract terms, NGCC, No. 3, 2018.
[13] Court of Justice of the European Union, 21.5.2015, No. 322/14.
[14] Cass. Civ. Sec. Un. 2017, no. 21622.
[15] Cass. Civ. Sec. Un. 2020, no. 1871.
[16] On this point see Cass. Civ. Sec. Un. 1982, no. 6190, Cass. Civ. 2003, no. 17209, Cass. Civ. 2010, no. 14703.
[17] Article 1 of the Convention that it "shall apply to contracts of sale of goods between parties having their place of business in different States: a ) where those States are Contracting States; or b ) where the rules of private international law refer to the application of the law of a Contracting State."
[18] According to Italian case-law, issues relating to e.g. representation and prescription are not governed by the Convention (Trib. Padua 25.2.2004; Trib. Vigevano 12.7.2000).
[19] Ferrari, International Sale of Goods,
[20] Bortolotti F. ''Handbook of International Commercial Law'' vol. II L.E.G.O. Spa, 2010; Ferrari F. ''General Terms and Conditions of Contract in Contracts for the International Sale of Goods'' in Obb. e Contr., 2007, 4, 308; Bonell M.J. ''Le condizioni generali in uso nel commercio internazionale e la loro valutazione sul piano transnazionale'' in ''Le condizioni generali di contratto'' edited by Bianca M., Milan, 1981).
[21] Trib. Rovereto 24.8.2006; Cass. Civ. 16.5.2007, no. 11226.
[22] On this subject, Ferrari, General Terms and Conditions in Contracts for the International Sale of Goods, Obbligazioni e contratti, 2007, 308.
