1) Italian Supreme Court: on the relationship between the defence of non-performance and the salvage duty (obbligo di salvataggio)

By judgment No. 21567/2026, published on 24 June 2026, the Italian Supreme Court ruled on the allocation of the burden of proof in cases involving breach of the salvage duty under insurance contracts pursuant to Article 1914 of the Italian Civil Code.

The Supreme Court first recalled that, in insurance contracts, the salvage duty qualifies as a secondary and instrumental obligation, which does not stand in a reciprocal relationship with the insurer’s indemnity obligation. This interpretation is confirmed by Article 1915 of the Italian Civil Code, which links breach of the salvage duty to the total or partial loss of the right to indemnity and not to termination of the contract.

From this interpretation of the salvage duty, according to the Supreme Court, it follows that the defense of non-performance under Article 1460 of the Italian Civil Code cannot apply in this context, since the law already provides that breach of such duty directly results in the insurer’s total or partial release from its principal obligation.

The Supreme Court therefore concluded that, where the insurer alleges a breach of the salvage duty by the insured party, it does not raise a defense of non-performance, but rather alleges a fact modifying or extinguishing the indemnity obligation. The burden of proof of such fact lies with the insurer as the party asserting it, pursuant to Article 2697(2) of the Italian Civil Code.

2) Italian Supreme Court: in B2B contracts concluded electronically, merely “ticking a box” does not satisfy the requirement of specific approval of onerous clauses under Article 1341(2) of the Italian Civil Code

By Order No. 20945/2026, published on 20 June 2026, the Italian Supreme Court clarified that, in business-to-business (“B2B”) contracts concluded electronically, merely “ticking a box” (i.e., selecting a checkbox) dedicated to the approval of onerous clauses does not satisfy the requirement of specific approval provided for under Article 1341(2) of the Italian Civil Code.

In reaching this conclusion, the Supreme Court referred to Article 13(1) of Legislative Decree No. 70/2003, which provides that the rules governing the conclusion of contracts also apply where the recipient of goods or services of the information society submits an order electronically.

Consequently, onerous clauses must be specifically approved in writing by the purchaser by means of a digital signature, which may take the form of an electronic signature (or so-called “light digital signature”) where the contract is not subject to a form requirement ad substantiam pursuant to Article 1350 of the Italian Civil Code.

For this purpose, the service provider must prepare, on its website, a specific form enabling the specific approval of onerous clauses through the methods indicated above.

To access the decision, click here.