Introduction
On 20 June 2026, the Third Civil Section of the Corte di Cassazione handed down Ordinanza No. 20945/2026, addressing the question of the validity of click-based contracting in the context of Italian law, but with important implications for online terms of service, general conditions, or click-wrap agreements intended to take effect under Italian law or addressed to Italian consumers.
We discuss this decision, hoping to give guidance to foreign companies dealing with Italian customers (business and consumers) through standards terms to be accepted online.
In Italy, the standard terms unilaterally prepared by one party containing exclusive jurisdiction clauses, limitation-of-liability clauses, termination rights, and similar provisions unilaterally favorable to that party, must be “specifically approved in writing” by the other party (Article 1341 of the Italian Civil Code). These clauses require a double signature, in addition to the signature on the main body of the contract. The rule was designed for paper contracts, and its application to online, click-based contracting is dealt with in the Italian Supreme Court’s decision of 20th June 2026, with an impact for any business, Italian or foreign, selling online under terms governed by Italian law.
The Decision in Brief
A commercial customer had accepted its energy supplier’s general conditions online, ticking a series of checkboxes (“flags”) on a web form. Those general conditions included an exclusive-forum clause. The supplier argued that the “double flag” mechanism used to sign the contract was sufficient to bind the customer.
The Italian Supreme Court disagreed. It confirmed, first, that Article 1341 c.c. protection is not limited to consumers: it applies to any party — including a business — that adheres to conditions unilaterally prepared by the other contracting party. Drawing on its own earlier case law on electronic signatures (Cass. n. 9413/2021, concerning banking and financial contracts), the Court required that the acceptance be given “specifically” and “consciously”: the online provider must build into the contracting journey a dedicated mechanism through which the adhering party expressly approves the vexatious clause (or clauses) separately from the rest of the general conditions.
Turning to the online context, the Court applied Article 13(1) of Legislative Decree No. 70/2003 (Italy’s implementation of the e-commerce directive), which extends the ordinary rules on contract formation to orders placed electronically for goods or services of the information society. On that basis, the Court held that in contracts concluded electronically having as their object goods or services of the information society, the acceptance can be given through a point and click mechanism.
However, the specific written approval required by Italian law for vexatious clauses must take the form of an electronic signature — including a “light” electronic signature under Article 3(10) of the eIDAS Regulation (EU) No. 910/2014. The Supreme Court held that a signature mechanism such as an OTP-based confirmation was correct but a bare tick of a generic checkbox did not meet that threshold.
On the facts, the supplier could not prove that its exclusive-forum clause had received any such specific, separate approval, and the clause was accordingly held ineffective.
The Court’s principle of law can be summarised as follows: in contracts concluded electronically between professionals and having as their object goods or services of the information society, not subject to a statutory written-form rule, a vexatious clause under Article 1341, second paragraph, of the Italian Civil Code is effective only if approved by the adhering party through an electronic signature (including a “light” signature under Article 3(10) eIDAS), but the mere ticking of the corresponding checkbox is not, on its own, sufficient.
Why This Matters Beyond the Energy Sector
This Judgment (Order No. 20945/2026) is not an isolated pronouncement; it sits within a well-established line of Italian Supreme Court’s case law confirming that Article 1341 c.c. protects businesses as well as consumers, and that vexatious clauses — exclusive-forum clauses, limitation-of-liability clauses, arbitration clauses, and the like — require a level of contractual formality beyond ordinary acceptance of general terms through a point and click mechanism.
In practice, the Italian judges suggest that businesses selling online under Italian law should build a separate, clearly labelled acceptance step for their vexatious clauses into their checkout or onboarding flow, supported by an auditable electronic signature mechanism such as an OTP-based confirmation, for instance, rather thaìn a tick-box.
The International Dimension: A Different Standard for Cross-Border B2B Contracts?
For international B2B contracts, the Italian Supreme Court has consistently held that Article 1341 civil code’s specific-approval requirement simply does not apply. This is not a matter of Italian domestic policy but a consequence of the principle of freedom of form under Article 11 CISG (United Nations Convention on Contracts for the International Sale of Goods of 1980, see Cass. N Cass. Sez. U. n. 7854/2001 and Cass. sez. un., ordinanza 29 aprile 2022, n. 13594) which prevails over specific national formal requirements. Moreover, there is an autonomous, uniform formal-validity regime that EU law itself imposes for choice-of-court clauses: first under Article 17 of the 1968 Brussels Convention, then Article 23 of Regulation (EC) No. 44/2001, and today Article 25 of Regulation (EU) No. 1215/2012 (Brussels I bis). Because these formal requirements are directly applicable and uniform across Member States, Italian domestic formal requirements — including the Article 1341 c.c. double-approval rule — are displaced. The Grand Chambers of the Italian Supreme Court have restated this point repeatedly, from the older line of authority (Cass., S.U., n. 2642/1998; n. 6634/2003) through more recent case law applying the current Regulation (Cass., S.U., n. 3624/2012; n. 16491/2021; n. 1717/2020; n. 13594/2022).
What EU law requires instead — and what the Italian Supreme Court does still insist on — is that the clause on jurisdiction reflect a genuine, conscious agreement between the parties and clearly identify the foreign court in whose favour Italian jurisdiction is derogated.
Article 25 of Regulation (EU) No. 1215/2012 sets out its own, self-contained formal requirements for a choice-of-court agreement to be valid. The agreement must be concluded:
- in writing or evidenced in writing; or
- in a form which accords with practices which the parties have established between themselves; or
- in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.
The Regulation further clarifies that “in writing” includes any communication by electronic means which provides a durable record of the agreement — which is why standard online acceptance mechanisms, including click-wrap procedures, are generally considered capable of satisfying Article 25, even though they would not satisfy Article 1341 c.c. for a purely domestic clause.
The protection of Italian Consumers
The Supreme Court confirmed that Article 1341 c.c. protection applies to any party, including consumers.
This protection under Italian law adds to the protection offered to consumers by EU Directive 93/13 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, EU Directive 2011/83/UE of 25 October 2011 on consumer law and Directive EU 2023/2673, as well as directive 2000/31/CE on electronic commerce.
Therefore, Italian consumers will receive a higher protection on their online contracts, than the one generally recognized under EU law – which, in general, does not require a specific approval mechanism for vexatious clauses.
This higher protection must be satisfied also by non Italian companies dealing with Italian consumers, as the result of art. 6 Eu Regulation n. 593/2008, stating that consumer contracts in EU are governed “by the law of the country where the consumer has his habitual residence, provided that the professional: (a) pursues his commercial or professional activities in the country where the consumer has his habitual residence, or (b) by any means, directs such activities to that country or to several countries including that country…”)
This means that online standard forms of agreement for goods and services addressed to Italian consumers, should contain a separate and specific mechanism of approval of vexatious clauses, which can not be limited to a point and click mechanism. Otherwise, this vexatious clauses – including limitation of liability clauses that would be acceptable under EU law, would be ineffective in Italy against Italian consumers, because of lack of an adequate mechanism of online approval.
Conclusion
Selling online to Italian consumers
International and EU Businesses selling online to Italian consumers now have a clear signal from the Italian Supreme Court that the Italian standard for validly binding vexatious clauses is higher than a generic acceptance checkbox: a separate, specific, auditable approval step (signature mechanism such as an OTP-based confirmation), is required for the vexatious clauses falling within Article 1341, second paragraph, Italian Civil Code, such as exclusive-forum clauses, limitation-of-liability clauses. Consequently, platforms built around a single “accept terms” tick-box should be reviewed and adjusted accordingly.
Selling online to Italian businesses
For international B2B e-commerce, however, the framework appears, as of today, unchanged: where a choice-of-court clause falls within the scope of Article 25 of Regulation (EU) No. 1215/2012, the Italian Supreme court’s case law continues to hold that the Article 1341 c.c. double-approval requirement does not apply, and ordinary electronic acceptance mechanisms remain sufficient to satisfy the Regulation’s own, more flexible formal requirements.
This article discusses Corte di Cassazione, Sez. III civ., Ordinanza 20 June 2026, No. 20945, and related case law. It is provided for general informational purposes and does not constitute legal advice on any specific transaction.