California Civil Jury Instructions (CACI)

309. Contract Formation—Acceptance

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

1. That [name of defendant] agreed to be bound by the terms of the offer. [If [name of defendant] agreed to be bound only on certain conditions, or if [he/she/it] introduced a new term into the bargain, then there was no acceptance]; and

2. That [name of defendant] communicated [his/her/its] agreement to [name of plaintiff].

If [name of plaintiff] did not prove both 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 to have not accepted plaintiff’s 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).

Sources and Authority

  • Civil Code section 1585 provides: “An acceptance must be absolute and unqualified, or must include in itself an acceptance of that character which the proposer can separate from the rest, and which will conclude the person accepting. A qualified acceptance is a new proposal.”
  • “[T]erms proposed in an offer must be met exactly, precisely and unequivocally for its acceptance to result in the formation of a binding contract; and a qualified acceptance amounts to a new proposal or counteroffer putting an end to the original offer.” (Panagotacos v. Bank of America (1998) 60 Cal.App.4th 851, 855–856 [70 Cal.Rptr.2d 595].)
  • “[I]t is not necessarily true that any communication other than an unequivocal acceptance is a rejection. Thus, an acceptance is not invalidated by the fact that it is ‘grumbling,’ or that the offeree makes some simultaneous ‘request.’ Nevertheless, it must appear that the ‘grumble’ does not go so far as to make it doubtful that the expression is really one of assent. Similarly, the ‘request’ must not add additional or different terms from those offered. Otherwise, the ‘acceptance’ becomes a counteroffer.” (Guzman v. Visalia Community Bank (1999) 71 Cal.App.4th 1370, 1376 [84 Cal.Rptr.2d 581].)

  • “The interpretation of the purported acceptance or rejection of an offer is a question of fact. Further, based on the general rule that manifested mutual assent rather than actual mental assent is the essential element in the formation of contracts, the test of the true meaning of an acceptance or rejection is not what the party making it thought it meant or intended it to mean. Rather, the test is what a reasonable person in the position of the parties would have thought it meant.” (Guzman, supra, 71 Cal.App.4th at pp. 1376–1377.)
  • “Acceptance of an offer, which may be manifested by conduct as well as by words, must be expressed or communicated by the offeree to the offeror.” (Russell v. Union Oil Co. (1970) 7 Cal.App.3d 110, 114 [86 Cal.Rptr. 424].)

Secondary Sources

1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 180–192

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

5 California Points and Authorities, Ch. 50, Contracts, § 50.352 (Matthew Bender)

27 California Legal Forms, Ch. 75, Formation of Contracts and Standard Contractual Provisions, § 75.214 (Matthew Bender)

1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking or Defending Existence of Contract—Absence of Essential Element, 13.25–13.31