California Civil Jury Instructions (CACI)

313. Modification

[Name of party claiming modification] claims that the original contract was modified or changed. [Name of party claiming modification] must prove that the parties agreed to the modification. [Name of other party] denies that the contract was modified.

The parties to a contract may agree to modify its terms. You must decide whether a reasonable person would conclude from the words and conduct of the parties that they agreed to modify the contract. You cannot consider the parties’ hidden intentions.

[A contract in writing may be modified by a contract in writing.]

[A contract in writing may be modified by an oral agreement to the extent the oral agreement is carried out by the parties.]

[A contract in writing may be modified by an oral agreement if the parties agree to give each other something of value.]

[An oral contract may be modified by consent of the parties, in writing, without an agreement to give each other something of value.]

New September 2003; Revised December 2009

Sources and Authority

  • Civil Code section 1698 provides:

    (a) A contract in writing may be modified by a contract in writing.

    (b) A contract in writing may be modified by an oral agreement to the extent that the oral agreement is executed by the parties.

    (c) Unless the contract otherwise expressly provides, a contract in writing may be modified by an oral agreement supported by new consideration. The statute of frauds (Section 1624) is required to be satisfied if the contract as modified is within its provisions.

    (d) Nothing in this section precludes in an appropriate case the application of rules of law concerning estoppel, oral novation and substitution of a new agreement, rescission of a written contract by an oral agreement, waiver of a provision of a written contract, or oral independent collateral contracts.

  • The Law Revision Commission comment to this section observes: “The rules provided by subdivisions (b) and (c) merely describe cases where proof of an oral modification is permitted; these rules do not, however, affect in any way the burden of the party claiming that there was an oral modification to produce sufficient evidence to persuade the trier of fact that the parties actually did make an oral modification of the contract.”
  • Civil Code section 1697 provides: “A contract not in writing may be modified in any respect by consent of the parties, in writing, without a new consideration, and is extinguished thereby to the extent of the modification.”
  • “It is axiomatic that the parties to an agreement may modify it.” (Vella v. Hudgins (1984) 151 Cal.App.3d 515, 519 [198 Cal.Rptr. 725].)
  • “Another issue of fact appearing in the evidence is whether the written contract was modified by executed oral agreements. This can be a question of fact. An agreement to modify a written contract will be implied if the conduct of the parties is inconsistent with the written contract so as to warrant the conclusion that the parties intended to modify it.” (Daugherty Co. v. Kimberly-Clark Corp. (1971) 14 Cal.App.3d 151, 158 [92 Cal.Rptr. 120], internal citation omitted.)
  • “Modification is a change in the obligation by a modifying agreement which requires mutual assent.” (Wade v. Diamond A Cattle Co. (1975) 44 Cal.App.3d 453, 457 [118 Cal.Rptr. 695].)
  • “A contract can, of course, be subsequently modified with the assent of the parties thereto, provided the same elements essential to the validity of the original contract are present.” (Carlson, Collins, Gordon & Bold v. Banducci (1967) 257 Cal.App.2d 212, 223 [64 Cal.Rptr. 915], internal citations omitted.)
  • “Generally speaking, a commitment to perform a preexisting contractual obligation has no value. In contractual parlance, for example, doing or promising to do something one is already legally bound to do cannot constitute the consideration needed to support a binding contract.” (Auerbach v. Great Western Bank (1999) 74 Cal.App.4th 1172, 1185 [88 Cal.Rptr.2d 718].)
  • Consideration is unnecessary if the modification is to correct errors and omissions. (Texas Co. v. Todd (1937) 19 Cal.App.2d 174, 185–186 [64 P.2d 1180].)

Secondary Sources

1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 964–971

Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 8E-G, Parol Evidence Rule, ¶¶ 8:3050–8:3202 (The Rutter Group)

13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.112, 140.149–140.152 (Matthew Bender)

5 California Points and Authorities, Ch. 50, Contracts, §§ 50.520–50.523 (Matthew Bender)

27 California Legal Forms, Ch. 77, Discharge of Obligations, §§ 77.21, 77.121, 77.320–77.323 (Matthew Bender)

2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 21, Asserting a Particular Construction of Contract, 21.58