Inclusion of Ts&Cs
As a general rule, under Italian Law Ts&Cs to be effective must be known by the party upon the execution of the contract or at least the opportunity to take notice of their content must be given.
Accordingly, Ts&Cs have to be included or attached to the offer documents (and/or order documents) and reference has to be made therein so that Ts&Cs constitute a part of the offer documents.
For online sales, the finalization of the order should be made possible only after acceptance of the Ts&Cs by flagging the relevant option (with the possibility to download/print Ts&Cs).
However, second paragraph of sect. 1341 states that Ts&Cs providing for:
- limitation of liability of the supplier;
- right to terminate the contract or to suspend its performance;
- limitation of the right of the customer to raise objections;
- restriction of the freedom of customer to negotiate with third parties;
- tacit extension or renewal of the contract;
- arbitration clauses and
- derogations from ordinary rules on competence,
are ineffective unless expressly accepted in writing by the party.
In such cases, according to the case law flagging an acceptance banner is not sufficient as Ts&Cs must be expressly accepted in writing by the costumer to be legally binding.
In B2B contracts where CISG applies, it prevails over both domestic law and Ts&Cs.
Indeed, pursuant to Article 6 of CISG “The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions”.
When applying the CISG the situation of including Ts&Cs from a Italian law perspective is somewhat unclear. As the application of the CISG is often excluded from agreements subject to Italian jurisdiction and Italian law, there is no significant published case law in this respect.
Battle of Forms
Under Italian law, the Last-Shot Rule (both statutory law and in case law) applies.
From an Italian law perspective, under the CISG, some legal commentators have pointed out the inappropriateness of the „mirror-image“ rule, proposing to relax it by extending to all contracts the rule under Article 19, para 2 CISG.
CMS Adonnino Ascoli & Cavasola Scamoni
Via Agostino Depretis 86