CACI No. 313. Modification

Judicial Council of California Civil Jury Instructions (2023 edition)

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[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
Modification. Civil Code section 1698.
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.”
Modification of Oral Contract. Civil Code section 1697.
“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
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 995-1002
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
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

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