By Order No. 20945 of 20 June 2026, the Third Civil Division of the Italian Supreme Court of Cassation addressed an issue of considerable importance for online B2B contracting: the manner in which the specific approval required under Article 1341(2) of the Italian Civil Code may validly be given in a digital environment.
The Court held that, in online contracts between businesses concerning goods or services of the information society, the specific approval required for the terms listed under Article 1341(2) must be expressed by means of an electronic signature. The mere selection or ticking of a checkbox corresponding to the relevant term is not, in itself, sufficient.
For contracts that are not subject to a written form ad substantiam, the requirement may also be satisfied by means of a simple electronic signature. By way of example, the Court referred to the use of a One-Time Password (OTP) sent to the signatory by SMS or email and subsequently entered on the platform.
The decision is particularly relevant for businesses using online onboarding and contracting processes based on acceptance of standard terms and conditions through checkboxes, especially where a separate checkbox is provided for the specific approval of the terms falling within Article 1341(2) of the Italian Civil Code.
The background of the case
The dispute arose from an electricity supply agreement entered into electronically between two companies.
Following the action brought by the customer before the Court of Viterbo, the supplier raised an objection asserting the exclusive jurisdiction of the Court of Rome, on the basis of the relevant jurisdiction clause contained in the standard terms and conditions.
According to the supplier, the contract had been concluded through a touch-point procedure: the customer had accepted the offer by completing an online form and selecting the relevant checkboxes, while the jurisdiction clause had allegedly been specifically approved by means of a separate flag.
The Court of Viterbo held that the jurisdiction clause was ineffective, noting, among other things, that no evidence had been provided that the clause had been specifically approved in accordance with the procedure described by the supplier.
The issue subsequently came before the Italian Supreme Court of Cassation in proceedings concerning the allocation of jurisdiction.
The principle established by the Supreme Court
The Court’s reasoning starts from Article 13(1) of Legislative Decree No. 70/2003, pursuant to which the ordinary rules governing the conclusion of contracts also apply where the recipient of an information-society good or service places an order electronically.
Accordingly, the Supreme Court held that the requirements under Article 1341(2) of the Italian Civil Code, including the requirement of specific written approval of the contractual terms falling within that provision, also apply to contracts concluded online.
The Court then examined how this requirement may be satisfied in a digital environment.
Referring to its previous case law concerning electronic documents and electronic signatures, and departing from more recent decisions of lower courts that had accepted point-and-click mechanisms as sufficient for the specific approval of terms under Article 1341(2), the Supreme Court held that, for contracts not subject to a written form ad substantiam, specific approval may validly be given by means of a simple electronic signature.
The online platform should therefore provide a dedicated process enabling the contracting party to specifically approve the relevant terms by means of an electronic signature, since, according to the Court, the mere selection of the relevant checkbox is not sufficient to satisfy this requirement.
By way of example, the Order identifies the use of an OTP sent by SMS or email as a possible means of obtaining such an electronic signature, without, however, necessarily limiting the technical means that may be used to this particular solution.
Specific approval in the digital environment
The Order provides an opportunity to transpose into the digital environment the traditional requirement of specific approval under Article 1341(2) of the Italian Civil Code. This provision dates back more than eighty years, to a period in which electronic contracting was not even foreseeable, and its application to digital contracting therefore requires an evolutionary interpretation capable of preserving its protective function without imposing formalities that are incompatible with the underlying rationale of the provision.
In paper-based contracting, this requirement is traditionally satisfied through the so-called double signature: the signature relating to the contract as a whole is followed, usually immediately below the first signature block, by a second and separate signature specifically approving the terms falling within Article 1341(2).
The transition to online contracting does not eliminate that requirement. What changes is the technical means by which the separate manifestation of consent is obtained and documented.
According to the approach adopted by the Supreme Court, it is therefore not sufficient for an online interface to distinguish general acceptance of the contractual terms from specific approval of the relevant terms merely by means of two separate checkboxes.
The specific approval must instead be obtained through a mechanism that qualifies as an electronic signature.
While this approach is understandable in light of the Court’s objective of ensuring effective protection for the contracting party, it may also result in a degree of formal rigidity that is not entirely consistent with the way digital contracting processes are ordinarily designed and operated.
The architecture of the signing process is therefore of particular importance. Businesses should ensure that their digital contracting flows clearly distinguish between acceptance of the contractual terms as a whole and the separate manifestation of consent specifically relating to the terms covered by Article 1341(2) of the Italian Civil Code.
Simple electronic signature and digital signing mechanisms
In identifying the applicable standard, the Order refers to the concept of an electronic signature under the eIDAS Regulation (Regulation (EU) on electronic identification and trust services for electronic transactions in the internal market).
For contracts that are not subject to a written form ad substantiam, the Court considers a simple electronic signature sufficient. The reference to an OTP represents one example of a mechanism through which the contracting party’s manifestation of consent may be obtained and documented.
The issue therefore concerns not merely the graphical interface through which the user expresses consent, but the entire electronic process underlying the signing transaction. This includes, in particular, user identification, attribution of the declaration to the relevant individual, recording of the transaction and preservation of the related evidence.
In practical terms, following the Supreme Court’s decision, the specific approval of terms falling within Article 1341(2) in an online contract should be obtained through a mechanism qualifying, at a minimum, as a simple electronic signature under the Italian Digital Administration Code (Codice dell’amministrazione digitale, or CAD) and the eIDAS Regulation. Businesses may therefore consider using, for example, basic electronic-signature solutions offered by established market providers or, as a relatively straightforward alternative, an OTP sent to the signatory by SMS or email. It remains to be seen whether future judicial decisions will further clarify the technical and procedural features that electronic signing systems must incorporate in order to satisfy the standard identified by the Supreme Court.
Implications for businesses
The decision is not limited to clauses derogating from territorial jurisdiction, which were at issue in the case before the Court.
The principle may be relevant to all clauses falling within Article 1341(2) of the Italian Civil Code, including, for example, limitations of liability, forfeiture clauses, restrictions on the right to raise defences, tacit extensions or renewals, and arbitration clauses.
For businesses using websites, portals or digital platforms to enter into B2B contracts, the decision therefore calls for careful consideration of both the content of their standard terms and conditions and the procedures through which those terms are presented to users and approved. The issue is particularly relevant in an increasingly global market, where the principal legal systems generally do not impose equivalent formal requirements for the specific approval of onerous contractual terms in contracts between business operators.
A further aspect concerns the proof of specific approval.
The case decided by the Supreme Court highlights the importance, for a party seeking to rely on a particular contractual term at a later stage, of being able to reconstruct and document the signing process followed by the individual contracting party.
It is therefore not sufficient to consider how consent is obtained at the point of contracting. Businesses must also assess whether their systems are capable of reliably preserving evidence of that consent over time.
What should businesses do?
Order No. 20945/2026 represents a recent development, and it remains to be seen whether, and to what extent, the principle established by the Third Civil Division will be confirmed and further clarified by subsequent case law.
In the meantime, however, it would nevertheless be appropriate for businesses entering into contracts online to adopt a prudent approach and review their digital contracting processes.
Such a review should focus, in particular, on the standard terms and conditions currently in use, the correct identification of the terms requiring specific approval under Article 1341(2) of the Italian Civil Code, the mechanisms through which such specific approval is obtained and the systems used to document and preserve evidence of the relevant signature.
Businesses should also assess whether existing procedures based solely on the selection of dedicated checkboxes should be updated by introducing electronic-signature mechanisms consistent with the indications contained in the Order, and review existing contracts to determine whether, in contracts of particular significance, the clauses requiring specific approval under Article 1341(2) were approved merely through a checkbox, with the risk that the relevant clauses may be held ineffective.
Pending further clarification from the courts as to the scope and practical application of the decision, the Digital, Tech & Data team at ADVANT Nctm is available to assist businesses in reviewing their standard terms and conditions, online signing processes and procedures for preserving electronic evidence, as well as in assessing the potential impact of the Order on existing contractual relationships.
