In recent years, the way in which contracts form, conclude and perform has undergone a radical transformation. The encounter between supply and demand has progressively shifted from physical space to digital space, to make the distance a normal dimension of the contemporary market. Buying goods, accepting the terms of an online subscription or signing a telephone service are now as common contractual acts as once were the handshake or signature on a paper document. The distance, in short, has become an ordinary form of bargaining.
This is not only technological but also legal, as it makes it necessary to revise the classic models of contract law, requiring us to adapt the relationship between contractual freedom, economic efficiency and the protection of the contracting party \weak \\.
Distance contracts are defined, pursuant to Article 45 of the Consumer Code, as any contract concluded [...] at a distance without the physical and simultaneous presence of the trader and the consumer, by the exclusive use of one or more means of communication at a distance until the conclusion of the contract, including the conclusion of the contract itself.
In appearance, this is a neutral evolution: technology allows to simplify procedures, reduce costs and extend access. But behind this simplification lies a deeper phenomenon, that of contractual standardisation, that is the unilateral definition of general conditions applicable to a vastness of identical relationships. It is a tendency that arises from the need for efficiency and uniformity, but inevitably reduces the possibilities of negotiation.
Standardisation is, for digital contract law, what the assembly line was for industrial production: a mechanism that multiplies efficiency but reduces customization. It allows platforms to operate on a large scale, maintaining consistency and predictability in legal relationships. However, the efficiency thus obtained has a price. The contractor, often a private consumer, does not have any power to modify the clauses, which are presented as a non-negotiable package. The contract, more than a result of shared will, thus becomes an act of accession.
This imbalance in bargaining power brings back to the centre an ancient subject of private law: the tension between contractual freedom and the protection of the weak contractor. In the digital context, this tension is amplified by the effect of the information disparity. The average user has neither the time nor the skills to understand complex clauses or technical, and often he simply clicks on "accept" without a real perception of the legal consequences. The speed becomes, paradoxically, a factor of vulnerability.
Transparency, traditionally entrusted to the written word, thus moves on the ground of the interface design. The shape of the button, the color of a link or the placement of a consent window are no longer aesthetic details, but legal instruments capable of guiding the contracting party's will.dark patterns,design schemes that unknowingly drive the user to predefined decisions have imposed a profound rethink of the very notion of informed consent. It is no longer sufficient for the information to be formally accessible, it must be actually understandable, readable and non-manipulating.
The most recent European legislation is developing on this front.TheDirective (EU) 2019/370 on contracts for the provision of digital content and services, for example, has established a series of information obligations and guarantees of compliance of the service by providing protection tools in case of defect. It requires the professional to clearly communicate the characteristics of the digital content, the updating rights, the duration of the service and the conditions of interoperability. Thus, transparency becomes a structural element of the contract and not a simple formal fulfilment.
The Directive, adopted on 20 May 2019, is a key step in the process of European harmonisation in the field of digital contracts, as it lays down uniform rules on the concept of "conformity" of content and services, including security updates as an essential component of the due delivery. It also provides for specific remedies, including termination of the contract, in the event of lack of conformity, and strengthens the consumer's right to receive clear, accessible and permanent pre-contractual information.
The Directive of the European Parliament and of the Council on consumer rights, transposed in Italy by the Consumer Code, strengthens this principle by imposing a clear information and a right of withdrawal without charges within fourteen days; moreover, following a change introduced by another Directive in 2023, for contracts concluded online, withdrawal must be possible through a digital function that is easy to find, easy to use and immediate to execute.
This intervention on the Directive has extended the principle of transparent design to digital interfaces, requiring that any site or application allowing the conclusion of distance contracts makes available a withdrawal button or an equivalent online procedure, visible.InItaly, these provisions will be included in the Consumer Code through formal transposition expected by this year.
The European regulatory framework has gradually been enriched with instruments which are
contribute to regulating digital relationships.
Among these we have the 2014 eIDAS Regulation which introduced the principle that electronic signature has the same legal effects as the signature, obliging all Member States to mutual recognition of officially recognised electronic identification means. Thus, each signed document digitally retains uniform legal value throughout the European legal area.
Next we find Regulation (EU) 2019/1150 (P2B), which regulates the relationships between platforms and companies, imposing transparency in the contractual conditions and in the criteria according to which the results are shown to users. The P2B (peer-to-business) aims to rebalance the relationship between the large digital intermediaries (such as marketplace and search engines) and commercial users by imposing the obligation to clearly communicate the criteria of positioning of the products, the causes of suspension or exclusion and the existence of treatments differing from its services. The Regulation also introduces mandatory mechanisms of complaint and mediation, laying the foundations of an algorithmic transparency already in advance of the times.
The most recent, which came into force in 2024, are the Digital Services Act and the Digital Markets Act which strengthen the liability of the platforms and impose obligations of fairness and
clarity in the process of submitting information.TheDigital Services Act (EU Reg. 2022/2065) sets specific transparency obligations on content, online advertising and recommendation algorithms, requiring platforms to indicate why content is displayed or removed.
The Digital Markets Act (Reg. EU 2022/1925) is aimed at digital gateways, such as Google, Meta or Amazon, prohibiting anti-competitive practices and imposing data portability and equal treatment between own and third-party services. Both regulations consolidate a digital liability paradigm that supports economic freedom to protect the fundamental rights of users.UpThis is the background to the case law of the European Court of Justice, which continues to define the boundaries of digital regulation.
In its judgments C-662/22 and C-667/22 (Airbnb Ireland and Amazon Europe vs AGCOM), the Court ruled on 30 May 2024, that Italy cannot impose additional obligations, such as registration in the Register of Communications Operators or payment of contributions, on service providers established in another Member State.TheDecision reaffirms the country of origin principle and the centrality of the digital single market, limiting national regulatory fragmentation.
According to the Court, these obligations violated Directive 2000/31/EC on electronic commerce, which requires Member States not to interfere with the freedom to provide services from another EU country, except for exceptions of public policy or security. The decision, which is intended to affect distance contracts, reaffirms that primary regulatory competence is the responsibility of the provider's habitual residence and that host States cannot introduce other administrative or economic barriers. Internally, the Consumer Code, Legislative Decree 206/2005, is still the main instrument of protection of the weak contractor.
Articles 45 et seq. govern contracts concluded at a distance and outside the commercial premises, imposing pre-contractual information obligations, the right to withdraw and nullify the terms of the vexatory clauses. Articles 52-59 of the Code fully transpose Directive 2009/3/EU, providing that the trader must provide precise information on identity, the total price, the methods of payment, delivery and withdrawal.
The right of withdrawal can be exercised within 14 days of the delivery of the goods or the conclusion of the contract, without justification and at no additional cost. If the professional fails to provide the mandatory information, the deadline is extended to 12 months. Next to it we have the Legislative Decree 70/2003 that regulates the services of the information society and the Code of the Digital Administration (Legislative Decree 82/2005) that lays down the rules for the validity of the computer documents and electronic signatures.
The Legislative Decree 70/2003, which implements Directive 2000/31/EC, defines the electronic contract and requires the provider to immediately confirm, electronically, the receipt of the order. The Code of the Digital Administration, on the other hand, states to art. 20 that the computer document with digital signature or qualified electronic signature meets the requirement of written form and has full probative effectiveness, Sancenza l'equivalenza functionale tra supporto elettronica e paper.
Finally, through guidelines and regulations, LMAGID and LMAGCOM have helped to define technical standards and transparency requirements for digital services, bringing national discipline closer to the Union principles.
AGID guidelines on the training and preservation of computer documents, as well as AGCOM regulations on platform transparency and digital consumer protection, are concrete examples of co-regulation between national authorities and European law.
This regulatory pluralism, however, while protecting the specificity of the different areas on the other hand, may generate uncertainty. The multiplication of sources and the continuous stratification of rules risk undermining the coherence of the system. For this reason, the European Commission is considering the creation of a harmonised Digital Contract Framework, which can collect rules in a single document.
There is no legislative act currently known asDigital Contract Framework, but the Commission has launched preparatory studies and public consultations on the subject with the aim of simplifying and unifying the disciplines of digital contracts, which, if implemented, would constitute a genuine European digital coding, reducing regulatory fragmentation and making the whole protection system more coherent
Contractual.
A particularly interesting perspective is the role of soft law and self-regulation. Digital platforms, driven by the needs of reputation and trust of users, are developing internal standards of transparency and codes of conduct, often in collaboration with national or European authorities. It is the sign of a
This evolution is accompanied by the imminent challenge of artificial intelligence.
The automation of contractual processes, the algorithmic customization of offers and the automatic drafting of clauses raise new questions about transparency and the de-icing of choices.
Who is legally responsible for an automated contractual decision? The future European AI Act, in its almost definitive version, introduces traceability and deplicability obligations for AI systems that affect consumer rights. Thus, the European legislator tries to extend the principle of informed consent to algorithmic dynamics as well.
Looking ahead, the right of distance contracts will have to face a dual objective: to preserve the efficiency and speed proper to the digital economy, but at the same time to ensure effective protection of the weak contractor. It is not a question of denying standardisation, but of making it fair. It is possible to imagine modular contractual models, in which some clauses are negotiable within predefined limits, or interfaces that guide the user in transparent and reversible choice paths.
In this perspective, technology is no longer a constraint, but a guarantee instrument.
Inconclusion, distance contracts embody the constant tension between efficiency and justice, between automatism and responsibility. Their regulation cannot be limited to replicating categories of the past, but must evolve in parallel with the economic reality it describes. Physical distance between the parties must not result in legal or cognitive distance.
On the contrary, the challenge of digital law is to make standardisation compatible with autonomy, automation compatible with awareness, efficiency compatible with the dignity of the contractor.
The contract of the future will inevitably be a "programmed" contract, capable of self-managing and adapting. But what must remain human (and therefore legally protected) is the freedom to choose and understand.
Only in this way can distance be transformed from a limit into a guarantee space, and standardisation can become a new form of contractual balance.