California Civil Jury Instructions (CACI) (2017)

310. Contract Formation—Acceptance by Silence

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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
• Consent by Acceptance of Benefits. Civil Code section 1589.
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].)
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
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