California Civil Jury Instructions (CACI)

307. Contract Formation—Offer

Both an offer and an acceptance are required to create a contract. [Name of defendant] contends that a contract was not created because there was never any offer. To overcome this contention, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] communicated to [name of defendant] that [he/she/it] was willing to enter into a contract with [name of defendant];

2. That the communication contained specific terms; and

3. That, based on the communication, [name of defendant] could have reasonably concluded that a contract with these terms would result if [he/she/it] accepted the offer.

If [name of plaintiff] did not prove all of the above, then a contract was not created.

New September 2003

Directions for Use

Do not give this instruction unless the defendant has testified or offered other evidence in support of his or her contention.

This instruction assumes that the defendant is claiming the plaintiff never made an offer. Change the identities of the parties in the indented paragraphs if, under the facts of the case, the roles of the parties are switched (e.g., if defendant was the alleged offeror). If the existence of an offer is not contested, then this instruction is unnecessary.

Sources and Authority

  • Courts have adopted the definition of “offer” found at Restatement Second of Contracts, section 24: “An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” (City of Moorpark v. Moorpark Unified School Dist. (1991) 54 Cal.3d 921, 930 [1 Cal.Rptr.2d 896, 819 P.2d 854].)
  • Under basic contract law “ ‘[a]n offer must be sufficiently definite, or must call for such definite terms in the acceptance that the performance promised is reasonably certain.’ ” (Ladas v. California State Automobile Assn. (1993) 19 Cal.App.4th 761, 770 [23 Cal.Rptr.2d 810].)
  • “The trier of fact must determine ‘whether a reasonable person would necessarily assume . . . a willingness to enter into contract.’ [Citation.]” (In re First Capital Life Insurance Co. (1995) 34 Cal.App.4th 1283, 1287 [40 Cal.Rptr.2d 816].)

  • Offers should be contrasted with preliminary negotiations: “Preliminary negotiations or an agreement for future negotiations are not the functional equivalent of a valid, subsisting agreement.” (Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 59 [248 Cal.Rptr. 217].)

Secondary Sources

1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 116, 117, 125–137

13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.22 (Matthew Bender)

27 California Legal Forms, Ch. 75, Formation of Contracts and Standard Contractual Provisions, § 75.210 (Matthew Bender)

1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking or Defending Existence of Contract—Absence of Essential Element, 13.18–13.24