E-commerce and digital signature: brief remarks on a recent case

The Court of Catanzaro, in the South of Italy, held an interesting (and even questionable) decision regarding the necessity of digital signatures on electronic contracts.
According to the Court, in case of unfair clauses included in the terms of use of the service, the agreement could not be concluded through a mere click, but a digital signature would be required. Some Italian scholars already stand on this opinion, splitting the consent due to the conclusion of the contract from the one due to approve unfair terms.
However, the opinion of the Court of Catanzaro jeopardizes the validity of (almost) all the contracts made on line and, in any case, all the terms of use of the most common web platforms. The case involved eBay’s terms and conditions but it is likely that the outcome would not have been different with Facebook’s or YouTube’s agreements.
In fact, pursuant to article 1341 of the Italian Civil Code, all the clauses which, inter alia, held limitations of liability, limitations on the rights to oppose, forfeitures, or regulate the competent court must be expressly approved in writing. These kind of clauses are extremely frequent in all the contracts made on the web.
However, it must be noted that the article 1341 does not require a physical signing by the counterpart. In other words, the prerequisite of the signature “in writing” could be complied also by an electronic signature, as regulated by the Italian Digital Administration Code (Legislative Decree No. 82 of 2005).
Furthermore, according to articles 20 and 21 of the Code, it should not be needed a digital signature, but an electronic signature would be enough for the validity of the contract (the so-called simple electronic signature and advanced electronic signature).
A flexible interpretation of the article 1341 of the Italian Civil Code seems more suitable for the digital environment and for a world which has changed from the 1942, when the Code was passed.
And after all such a conclusion, from an economic perspective, should avoid the risk of putting at risk the growth of the Italian e-commerce, which is already getting behind if compared with other European markets.
Digital and electronic signatures are not very common among consumers (who are already still reluctant towards electronic transactions) and a formalistic interpretation of the traditional provisions would certainly be a disincentive for the whole sector.