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Practical problems arising
in Internet negotiation.
The view of a company lawyer
Turin 6 June 2008
Giuseppe Catalano
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An agreement between two “distant” parties
• For an Italian lawyer an agreement entered into by
means of two pcs linked on the net essentially
arises two kinds of problems concerning the
agreement itself and its form
• From an Italian point of view, the agreement is
entered into by two “distant” parties, as it normally
happens with slower means (e.g., “normal” mail)
• Cruciality of exchange proposal/acceptance  what
about the legal qualification of an interactive
catalogue (e-shop) on the webpages of the seller?
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An e-shop under the Italian rules
• One of the usual questions for an Italian lawyer: is
the e-shop page an offer to the public (art. 1336
c.c.)…
• …or is it an invitation to offer?
• Practical difference is that in the first case the
declaration of the purchaser “closes” the contract,
while in the second case it is just a proposal
• The binding effect on a “social plan” happens when
the purchaser provides indication of the means of
payment and gives the definitive “send”.
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Knowledge and “knowability”
• Art.1326 of the Italian civil code  the contract is
entered into in the time and on the place where the
(electronic message of) acceptance arrives to the
offering party
• Our system does not require the effective
knowledge of the acceptance but just its possibility
of knowledge
• A declaration sent by e-mail will play its effects as it
arrives to the addressee’s mailbox (see Art. 12 of
the Regolamento sulla firma elettronica, Decree No.
513 of1997), independently from the effective
reading by the latter
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The new Italian regulation
• Italy has always been ready to regulate the world of
“digital” contracts and related legal issues
• Article 15 of Law 15 March 1997, No.59, established
validity and enforceability of acts, data and documents
“made” by public administration and private citizens by
way of electronic instruments, contracts entered into in the
same forms and their transmission with electronic
instruments
• Afterwards several new rules have been introduced by the
Italian legislator in order to regulate the “digital” world
• In particular, Legislative Decree 7 March 2005, No. 82,
named “Code of Digital Administration”, regulates digital
documents as well as electronic signatures.
Rules introduced in the Consumer Code
• Negotiations by means of pc’s and electronic webs
are regulated by the Consumer Code entered into
force with Legislative Decree 6 September 2005,
No. 206
• In the Consumer Code it is also included the text of
Legislative Decree No. 185 of 1999 which
implemented Directive 1997/7/CE as well as the text
of Leg. Decree No. 70 of 2003 which at its turn
implemented Directive 2000/31/CE (the so-called
“electronic commerce directive”)
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Rules introduced in the Consumer Code (cont.)
• Again, it is confirmed that contracts entered into by
two persons linked by an electronic line are fully
valid and enforceable in Italian law…
• [some doubts arose some time ago for the use of
telex and telefax…]
• Electronic contracts are a species of a greater
genus called “distance contracts”, regulated by
Article 50 and seqq…
• …and defined as the contracts entered into between
a professional and a consumer under an organised
distance sales or service-provision scheme run by
the supplier, who … makes exclusive use of one or
more means of distance communication
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Net as a sample of means of distance communication…
• In the Consumer Code, definition of means of
communication makes reference to any kind of
means which, without the (physical) presence of
the supplier and the consumer in the same place
at the same time, may be used for the conclusion
of a contract between those parties
• When I was a student, the typical example was the
use of letters to enter into a “distance agreement”
• Now, the example is the use of the electronic mail…
and/or Internet
• …which poses interesting questions on certain
issues, e.g. on the possibility to revoke the
acceptance with “faster” means.
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… with certain consequences
• A number of consequences arises from this qualification
(see G. PASCUZZI, Il diritto dell’era digitale, Bologna,
2006):
• Ius poenitendi  a period of ten business days
recognized to the consumer to withdraw from a
contract without incurring in any penalty to be paid nor
any reason to be provided (Article 64 of the
Consumer Code)
• Several pieces of information to be provided to the
consumer (Article 52), among which:
• The identity of the seller;
• Main characteristics of goods and services on
sale;
• The existence itself of the right of withdrawal
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… and certain other consequences
• A number of other consequences arises too (Article
53):
• A written confirmation to be provided to the
consumer …
• … or, at request of the latter, confirmation “in
another durable medium available and
accessible” …
• Of the information in Article 52 …
• …and other information, among which “the
professional against whom the consumer may
bring claims”…
• … And “information about after-sales services
and existing guarantees”
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… and certain other consequences (cont.)
But…
• Said provisions “shall not apply to services
which are provided via some means of
distance communication”,
• With the only exception of the ability for the
consumer to obtain the address of the
professional to which complaints may be
addressed
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More care for the consumer
Article 12 of Legislative Decree 70 is alive and kicking!
The supplier shall also provide in a clear, understandable and
inequivocabile way, before dispatch of the order by the addressee,
the following information:
a. the various technical phases to be followed for the
entering into of the agreement;
b. the way in which the entered-into agreement will be archived
and the related way of access;
c. the technical means which are available to the addressee in
order to discover and amend any mistake in inserting data
before dispatch of the order to the supplier;
d. any code of conduct which it adheres to and how to access to
it by electronic way;
e. available languages other than Italian to enter into the contract;
f. indication of ways of resolving disputes.
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Unsolicited supply and competent venue
• Another way of guaranteeing a “distant consumer”
• Prohibition of supplying goods and services without
receiving orders for said supplies
• ... But only in cases involving requests for payment!
• Consequently, no requests of payment for unsolicited
supplies ...
• ... and the impossibility to consider a lack of response
as a consent
• With a rule superseding the current rules of procedure,
the competent venue shall be the place of domicile or
residence of the consumer in Italy
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A different approach to a different relation
• Said rules apply in “B2C” relations...
• What about “B2B”?
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The Electronic (Informatico) Document
Article 20 of Legislative Decree No. 82/2005 (as amended
in 2006) refers to the electronic (informatico) document
This document, made by anybody, or registration on
electronic support and transmission with electronic
means are valid pursuant to the law, if made pursuant
to the code and to the technical rules.
A recently-introduced paragraph tells that suitability of the
electronic document to satisfy the requisite of the
written form is “liberally valuable during a procedure”…
… bearing in mind objective characteristics of quality,
safety, integrity and impossibility to modify it.
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A common approach
• Legislation concerning “distant documents” focuses
on the pre-contractual information to be provided to
the consumers
• It is an approach which becomes more and more
usual in Italian legislation – see the law concerning
commercial franchising
• Means are not important themselves, but as an
easier way to access to the consumer
• But … exigencies in relations between professionals
are not so different!
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A common approach (cont.)
• … in the sense that it is important to focus on how
to pre-build the enforceability of an electronic
documents…
• Remaining issues are not a problem to be solved in
a different way from any other document, e.g.
powers of representing the company
• The only issue is not to have any dispute on the
legal enforceability
• An order sent by electronic mail may be considered
as a part of a larger legal context between parties…
• A confirmation in a master agreement ??
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Thank you
Giuseppe Catalano
[email protected]
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