California Civil Jury Instructions (CACI) (2017)

305. Implied-in-Fact Contract

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305.Implied-in-Fact Contract
In deciding whether a contract was created, you should consider the
conduct and relationship of the parties as well as all the circumstances
of the case.
Contracts can be created by the conduct of the parties, without spoken
or written words. Contracts created by conduct are just as valid as
contracts formed with words.
Conduct will create a contract if the conduct of both parties is
intentional and each knows, or has reason to know, that the other party
will interpret the conduct as an agreement to enter into a contract.
New September 2003
Sources and Authority
• Contract May Be Express or Implied. Civil Code sections 1619.
• Express Contract. Civil Code section 1620.
• Implied Contract. Civil Code section 1621.
• “Unlike the ‘quasi-contractual’ quantum meruit theory which operates without
an actual agreement of the parties, an implied-in-fact contract entails an actual
contract, but one manifested in conduct rather than expressed in words.”
(Maglica v. Maglica (1998) 66 Cal.App.4th 442, 455 [78 Cal.Rptr.2d 101].)
• “An implied-in-fact contract is based on the conduct of the parties. Like an
express contract, an implied-in-fact contract requires an ascertained agreement
of the parties.” (Unilab Corp. v. Angeles-IPA (2016) 244 Cal.App.4th 622, 636
[198 Cal.Rptr.3d 211], internal citation omitted.)
• Express and implied-in-fact contracts have the same legal effect, but differ in
how they are proved at trial: “ ‘Contracts may be express or implied. These
terms, however, do not denote different kinds of contracts, but have reference to
the evidence by which the agreement between the parties is shown. If the
agreement is shown by the direct words of the parties, spoken or written, the
contract is said to be an express one. But if such agreement can only be shown
by the acts and conduct of the parties, interpreted in the light of the subject-
matter and of the surrounding circumstances, then the contract is an implied
one.’ ” (Marvin v. Marvin (1976) 18 Cal.3d 660, 678, fn. 16 [134 Cal.Rptr. 815,
557 P.2d 106], internal citation omitted.)
• “As to the basic elements [of a contract cause of action], there is no difference
between an express and implied contract. . . . While an implied in fact contract
may be inferred from the conduct, situation or mutual relation of the parties, the
very heart of this kind of agreement is an intent to promise.” (Division of Labor
Law Enforcement v. Transpacific Transportation Co. (1977) 69 Cal.App.3d 268,
275 [137 Cal.Rptr. 855]; see also Friedman v. Friedman (1993) 20 Cal.App.4th
876, 888 [24 Cal.Rptr.2d 892].)
• The formation of an implied contract can become an issue for the jury to
decide: “Whether or not an implied contract has been created is determined by
the acts and conduct of the parties and all the surrounding circumstances
involved and is a question of fact.” (Del E. Webb Corp. v. Structural Materials
Co. (1981) 123 Cal.App.3d 593, 611 [176 Cal.Rptr. 824], internal citation
• “Whether an implied contract exists ‘ “ ‘is usually a question of fact for the trial
court. Where evidence is conflicting, or where reasonable conflicting inferences
may be drawn from evidence which is not in conflict, a question of fact is
presented for decision of the trial court. . . .’ [Citation.]” ’ ” (Unilab Corp,
supra, 244 Cal.App.4th at p. 636.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 102
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.10,
140.110 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.07