General terms and conditions for e-commerce

Here we are back after a few months of stoppage due to the accumulation of work and projects to be developed which, in spite of ourselves, prevented us from finding time for our monthly appointment with the BASE315 blog. Today we are talking about online commerce and, in particular, the general terms and conditions to be prepared and included in our e-commerce. Often those who decide to dedicate themselves to online sales and create (or have themselves made) an e-commerce underestimate a very important aspect: online sales conceptually does not differ much from selling in a physical store. What changes and makes it a peculiar form of sale is the means through which it is achieved. Therefore, like the latter, it is necessary that before the conclusion of the purchase process (and therefore before the contract is perfected), the buyer has been adequately informed of the general terms and conditions of the same: in simple terms, the buyer must be informed of the content of the contract which he is about to sign and which governs the relations established with the seller. Obviously, for these conditions to be binding between the parties, it is necessary not only that the buyer has read them but also that he has expressly accepted before the conclusion of the contract. For this reason, a check to be ticked is normally inserted with which the user declares to have read and expressly accept the general terms and conditions of the sale in progress (contained in a page linked by the text of the check). The legislation of reference is constituted by the Consumer Code, by the legislative decree n. 70 of 2003 (with which the EC directive on electronic commerce was implemented) and, obviously, by the Civil Code.

1) To whom does the legislation on electronic commerce apply?

The D. lgs. n. 70 of 2003 applies to information society services provided by a provider established in Italy, bearing in mind that “information society services” means economic activities carried out online. line.

The aforementioned legislation, in fact, aims to regulate the purchase of goods and/or services through the so-called virtual showcases (e-commerce in fact), or those websites that offer goods and/or services for sale under standard contractual conditions, not subject to individual negotiation.

2) What characteristics should the general conditions of sale have?

Since the mechanism in the negotiation between the parties is not part of the logic of an e-commerce, it is all the more essential that the terms and conditions of sale are understandable, exhaustive and easily identifiable.
In fact, it should be borne in mind that art. 1341 of the Italian Civil Code provides that “ The general terms and conditions prepared by one of the contracting parties are effective towards the other, if at the time of the conclusion of the contract, he knew them or should have known them using ordinary diligence ” .
In any dispute, therefore, clauses that the same did not know or could not have known, at the time the contract was concluded, will not be opposable to the buyer.

Put simply: if the seller carefully prepares the clauses governing his online trade, he draws them up in such a way that they are easily understandable and inserts a check from the purchase process (before it is concluded). Flag by the buyer containing a link to the general terms and conditions of sale these conditions will likely be opposable to the person who made the purchase.
It matters little that the latter does not bother to read them with due attention, because the same had actually been put in a position to know them.

If, on the contrary, the owner does not duly prepare these conditions or inserts them on a page of the website that is not easily identifiable or accessible, the enforceability of these conditions to the buyer is far from obvious.

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3) What information must be included in the general conditions?

If you are about to undertake an online business, the rules that you must keep in mind in order to have as comprehensive a picture as possible of the information to be compulsorily included on your website are the following:

a) Based on the provisions of art. 7 of Legislative Decree n. 70 of 2003, the service provider (in our case the seller), in addition to any ad hoc disclosure obligations for specific goods and services, must “ make it easily accessible, directly and permanently, to the recipients of the service and to the competent Authorities the following information:

the name , the denomination or company name ;
the domicile or the registered office;
the details that allow you to contact quickly the lender and communicate directly and effectively with him, including the e-mail address;
the registration number in the register of economic activities, REA, or in the register of companies;
the identification elements as well as the contact details of the competent supervisory authority if an activity is subject to concession, license or authorization;
the reference to professional standards and any codes of conduct in force in the Member State of establishment and the procedures for consulting them;
the number of the IVA number or other identification number considered equivalent in the Member State, if the provider carries out a taxable activity (attention: as already explained in our article Mandatory data for a company site, the IVA number must compulsorily appear on the homepage);
a clear and unambiguous indication of the prices and tariffs of the various information society services provided, highlighting whether they include taxes, delivery costs and other additional elements to be specified;
the indication of the activities allowed to the consumer and the recipient of the service and the details of the contract if an activity is subject to authorization or the object of the service is provided on the basis of a user license agreement “.

With particular reference to regulated professions, the professional order (or similar institution) with which the provider is registered and the registration number, as well as the professional title and the Member State in which it was issued, must also be indicated.

b) The seller is also required (unless there is a different agreement between parties other than consumers), to provide the buyer, before the latter proceeds to forward the order, the following information:

“the various technical steps to be followed for the conclusion of the contract;
the way in which the concluded contract will be filed and the relative access procedures;
the technical means made available to the recipient to identify and correct data entry errors before forwarding the order to the provider;
any codes of conduct to which it adheres and how to access them electronically;
the languages  available to conclude the contract in addition to Italian;
indication of the dispute resolution tools. “

This further information is not required in the event that the contract is concluded exclusively through the exchange of e-mail messages or equivalent individual communications.

Once the order has been placed, the seller must send the buyer a confirmation of the successful conclusion of the contract on a durable medium. This must be done within a reasonable time frame and, at the latest, before the delivery of the purchased goods.

The following information must be indicated in the confirmation:

“general and particular conditions applicable to the contract;
information relating to the essential characteristics of the good or service;
the detailed indication of the price, means of payment, withdrawal, delivery costs and applicable taxes”.

As regards, in particular, the right of withdrawal, it should be pointed out that purchases made through e-commerce fall within the category of contracts concluded at a distance.
For this contractual form, the consumer code (art.52) reserves the buyer the right to withdraw from the contract within 14 days from the conclusion of the same or in the case of a service contract or, in the case of a sale, from the moment in which the buyer comes into possession of the asset.

What is indicated in this article does not claim to have dealt with the subject in an exhaustive manner, which contemplates a wide range of cases. It is in fact always advisable to contact a lawyer who checks the correctness and completeness of the sales conditions issued.

If you need more information or if you need to draw up the terms and conditions for your e-commerce, contact me for personalized assistance.