The drafting of the Terms of Use of a website is an activity that requires the greatest attention, since it will be the main contractual document executed by the website owner and the user.
Under Italian law, the Terms of Use, also referred to as General Terms and Conditions of Contract, are governed by article 1341 of the Civil Code
What does the above-mentioned provision establish?
1) The general conditions of contract prepared by one of the contractors are enforceable against the other, if at the time of execution of the contract, such conditions were known or ought to have been known by using an ordinary degree of diligence.
2) In any event, the terms and conditions that provide – for the benefit of the person who prepared them – limitations of liability, entitlement to withdraw from the contract or suspension of the execution thereof, or impose upon the other party time-bars, limitations on the right to raise defenses, restrictions on the freedom of contract with third parties, the tacit extension or renewal of contracts, arbitration clauses or exceptions to the jurisdiction of the court shall be without effect.
There is, therefore, a differentiated regime for general clauses mentioned in the first paragraph, which we could define as standard (which are effective for so long as they are known or knowable by the contractor) and so-called onerous or unfair terms, mentioned in the second paragraph, which require specific approval in writing.
But what is meant by unfair or onerous terms?
Traditionally, contractual clauses are defined as vexatious or onerous clauses when they worsen the position of the contractor vis-à-vis the general provisions regulating contracts. Classic examples are constituted by the terms which impose limitations or exemptions of liability (e.g. waiver of liability clauses for infringements of intellectual property rights) or terms by virtue of which the site administrator may unilaterally suspend the provision of the service.
In the event that the other party is a consumer, the specific provisions of Legislative Decree 206/2005 (Consumer Code) will also apply thereto.
How do you meet the requirement of specific approval in writing?
The answer cannot be separated from the analysis of the most recent decisions handed down by the Italian courts.
In principle, it has been held that it is sufficient to recall all the onerous clauses, provided that they are mentioned together with the numbering of such clauses and the corresponding object (Italian Supreme Court judgment no. 10942/2006), and provided that the signature by way of approval of such onerous clauses is distinct and separate from the signature by way of approval of the rest of the contract (Italian Supreme Court judgment no. 12455/1997)
A generic statement that the contractor is aware of the terms and approves them is obviously not sufficient (cfr. Italian Supreme Court No. 2849/1998).
By way of conclusion, the administrator must, in order to meet the requirements of article 1341, paragraph 2 of the Italian Civil Code, provide for at least two approvals:
1) A first generic approval the entire contract;
2) A second, specific approval of the onerous clauses, indicated by number and subject.
In addition, the administrator will have to pay close attention to the terms and conditions for which specific approval is required.
The reference in block to all of the general conditions of contract (or most of them) – including those which are not onerous – albeit accompanied by the number of the clause – does not determine the validity and effectiveness, pursuant to article 1341, paragraph two of the Italian Civil Code, of the onerous clauses since, in such circumstances, the attention of the weaker contractor’s attention towards clause which is unfavorable is not guaranteed (Italian Supreme Court No. 9492/2012)
What is the penalty for failure to specifically approve the standard/onerous clauses?
Based on the prevailing case law, the lack of specific approval in writing determines the absolute nullity of the clause itself, which can be ascertained ex officio by the judge in any and every stage and levels of the proceedings (Supreme Court judgment No. 16394/2009)
