CACI No. 307. Contract Formation - Offer

Judicial Council of California Civil Jury Instructions (2023 edition)

Download PDF
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/nonbinary pronoun/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/nonbinary pronoun/it] accepted the offer.
If [name of plaintiff] did not prove all of the above, then a contract was
not created.
New September 2003; Revised May 2020
Directions for Use
Do not give this instruction unless the defendant has testified or offered other
evidence in support of the contention there was never any offer.
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
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
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 (11th ed. 2017) Contracts, §§ 116, 117,
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

© Judicial Council of California.