California Civil Jury Instructions (CACI)

310. Contract Formation—Acceptance by Silence

Ordinarily, if a party does not say or do anything in response to another party’s offer, then he or she has not accepted the offer. However, if [name of plaintiff] proves that both [he/she/it] and [name of defendant] understood silence or inaction to mean that [name of defendant] had accepted [name of plaintiff]’s offer, then there was an acceptance.

New September 2003

Directions for Use

This instruction assumes that the defendant is claiming to have not accepted plaintiff’s offer. Change the identities of the parties in the last two sets of brackets if, under the facts of the case, the roles of the parties are switched (e.g., if defendant was the alleged offeror).

This instruction should be read in conjunction with and immediately after CACI No. 309, Contract Formation—Acceptance, if acceptance by silence is an issue.

Sources and Authority

  • Because acceptance must be communicated, “[s]ilence in the face of an offer is not an acceptance, unless there is a relationship between the parties or a previous course of dealing pursuant to which silence would be understood as acceptance.” (Southern California Acoustics Co., Inc. v. C. V. Holder, Inc. (1969) 71 Cal.2d 719, 722 [79 Cal.Rptr. 319, 456 P.2d 975].)
  • Acceptance may also be inferred from inaction where one has a duty to act, and from retention of the offered benefit. (Golden Eagle Insurance Co. v. Foremost Insurance Co. (1993) 20 Cal.App.4th 1372, 1386 [25 Cal.Rptr.2d 242].)
  • Civil Code section 1589 provides: “A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting.”
  • Section 69(1) of the Restatement Second of Contracts provides:

    (1) Where an offeree fails to reply to an offer, his silence and inaction operate as an acceptance in the following cases only:

    (a) Where an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation.

    (b) Where the offeror has stated or given the offeree reason to understand the assent may be manifested by silence or inaction, and the offeree in remaining silent and inactive intends to accept the offer.

    (c) Where because of previous dealings or otherwise, it is reasonable that the offeree should notify the offeror if he does not intend to accept.

Secondary Sources

1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 193–197

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, § 75.11 (Matthew Bender)

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