Unfair terms and the uniquely Italian feature of double signature
The first of two articles on unfair terms in Italian law, in the B2B and B2C sectors.
Introduction
Many commercial contracts arise from the unilateral drafting of general terms and conditions, which are applied to an indefinite number of customers without scope for negotiation.
Those who draft these terms include banks, insurers, telecoms operators, digital service providers, car manufacturers and pharmaceutical companies. The same mechanism now also governs contracts concluded online, both in B2C e-commerce and in B2B agreements on digital platforms.
Increasingly, even customers outside the sectors mentioned above draw up standard contracts that, as such, are not negotiated, leaving the regulation of specific aspects solely to variable annexes.
Italian law, through Articles 1341 and 1342 of the Civil Code, protects the weaker party in general terms and conditions and/or standard contracts by imposing a formal requirement that also applies between businesses: the dual signing of unfair terms.
Understanding this framework is essential for anyone involved in business: a clause that appears valid may prove ineffective if the formalities required by law are not met.
The specific nature of dual signature in B2B contracts
Some time ago, our firm submitted a contract governed by Italian law to a foreign client, specifying that two signatures were required, one of which was to be provided in accordance with Articles 1341 and 1342 of the Italian Civil Code. The client asked us: “Two signatures? Why?” We therefore had to explain this distinctive Italian requirement.
Article 1341 of the Italian Civil Code provides that clauses drafted by one party are binding on the other party only if the latter was aware of them or should have been aware of them through the exercise of ordinary diligence, at the time the contract was concluded.
However, for certain particularly onerous clauses, mere awareness is not sufficient: separate and express approval is required, by means of a second, independent signature. Article 1342 of the Italian Civil Code extends this principle to contracts concluded using standard forms or templates designed to regulate a specific relationship on a mass basis.
This mechanism applies regardless of the nature of the contracting party, including between businesses.
The clauses requiring specific approval (Article 1341, paragraph 2 of the Italian Civil Code) are those that establish, in favour of the drafter: limitations of liability, rights to withdraw or suspend the contract, forfeitures to be borne by the adhering party, limitations on raising defences, restrictions on contractual freedom with third parties, tacit extension or renewal, arbitration clauses, and derogations from judicial jurisdiction.
The distinctive feature of Italian law is that it has translated the protection of the weaker contracting party into a standardised formal requirement that can be verified by documentary evidence – the specific signature, which draws the contracting party’s attention to it – rather than into a substantive review left to the judge ex post.
For the clauses to be valid and effective, two signatures are required: one to form the contractual relationship and a second to approve the unfair terms.
The consequences of failing to provide both signatures
An unfair term that has not been specifically approved in writing is void.
This invalidity applies as a matter of law and may come to light at any time, even when it is no longer possible to remedy the situation.
This is therefore a check that must be carried out systematically during the due diligence phase, even before any litigation arises.
A company seeking to rely on a limitation of liability or a choice of court clause may discover, only in court, that the clause is invalid because the second signature is missing.
The prior verification of dual signatures on all clauses within the scope of Article 1341, paragraph 2, of the Italian Civil Code is therefore essential for contractual risk management.
A practical case: the Court of Cassation and digital contracts
A recent ruling by the Court of Cassation confirms that this requirement applies, without exception, to the digital environment.
In Order No. 20945 of 20 June 2026, the Supreme Court considered a case concerning an electricity supply contract between two companies, concluded online, in which the clause derogating from the jurisdiction of the courts had to be accepted by means of two ticks (flags) on a web platform, as a digital equivalent of a double signature.
On the merits, the judges ruled that merely ticking a box could not satisfy the requirement for specific written approval. However, the judges clarified that a digital signature in the strict sense is not necessary: an electronic signature may be sufficient to guarantee informed and specific approval, typically via an OTP sent by text message or email.
In the present case, the clause was declared invalid not because the double-tick mechanism was inherently unsuitable, but because no evidence had been provided of its application.
Therefore, electronic contracting does not exempt parties from the obligation to provide a dual signature but requires a technological rethink of this requirement.
For businesses operating with digital or international contracts governed by Italian law, the recommendation is clear: ensure that the approval mechanisms adopted on their platforms are suitable for meeting the requirement for specific written approval, and, above all, retain evidence of their correct implementation.
In the next article, we will examine in greater depth the rules governing unfair terms in consumer relations (B2C). In this context, alongside the framework set out in Articles 1341 and 1342 of the Italian Civil Code, the specific provisions of the Consumer Code apply.
