California Civil Jury Instructions (CACI) (2017)
337. Affirmative Defense—NovationDownload PDF
[Name of defendant] claims that the original contract with [name of
plaintiff] cannot be enforced because the parties substituted a new and
different contract for the original.
To succeed, [name of defendant] must prove that all parties agreed, by
words or conduct, to cancel the original contract and to substitute a
new contract in its place.
If you decide that [name of defendant] has proved this, then the original
contract is not enforceable.
New September 2003; Revised October 2004
Directions for Use
If the contract in question is not the original contract, specify which contract it is
instead of “original.”
Although there is language in Alexander v. Angel (1951) 37 Cal.2d 856, 860–861
[236 P.2d 561] that could be read to suggest that a novation must be proved by the
higher standard of clear and convincing proof, an examination of the history of that
language and the cases upon which the language in Alexander depends (Columbia
Casualty Co. v. Lewis (1936) 14 Cal.App.2d 64, 72 [57 P.2d 1010] and Houghton v.
Lawton (1923) 63 Cal.App. 218, 223 [218 P. 475]) demonstrates that the original
use of the term “clear and convincing,” carried forward thereafter without analysis,
was intended only to convey the concept that a novation must clearly be shown and
may not be presumed. The history of the language does not support a requirement
that a party alleging a novation must prove there is a high probability (i.e., clear
and convincing proof) that the parties agreed to a novation. See also, sections 279
and 280 of the Restatement Second of Contracts. A party alleging a novation must
prove that the facts supporting the novation are more likely to be true than not true.
Sources and Authority
• Novation. Civil Code sections 1530. 1531.
•“A novation is a substitution, by agreement, of a new obligation for an existing
one, with intent to extinguish the latter. A novation is subject to the general
rules governing contracts and requires an intent to discharge the old contract, a
mutual assent, and a consideration.” (Klepper v. Hoover (1971) 21 Cal.App.3d
460, 463 [98 Cal.Rptr. 482].)
• Conduct may form the basis for a novation although there is no express writing
or agreement. (Silva v. Providence Hospital of Oakland (1939) 14 Cal.2d 762,
773 [97 P.2d 798].)
• Novation is a question of fact, and the burden of proving it is upon the party
asserting it. (Alexander v. Angel (1951) 37 Cal.2d 856, 860 [236 P.2d 561].)
• “When there is conﬂicting evidence the question whether the parties to an
agreement entered into a modiﬁcation or a novation is a question of fact.”
(Howard v. County of Amador (1990) 220 Cal.App.3d 962, 980 [269 Cal.Rptr.
• “The ‘question whether a novation has taken place is always one of intention,’
with the controlling factor being the intent of the obligee to effect a release of
the original obligor on his obligation under the original agreement.” (Alexander,
supra, 37 Cal.2d at p. 860, internal citations omitted.)
• “[I]n order for there to be a valid novation, it is necessary that the parties
intend that the rights and obligations of the new contract be substituted for the
terms and conditions of the old contract.” (Wade v. Diamond A Cattle Co.
(1975) 44 Cal.App.3d 453, 457 [118 Cal.Rptr. 695].)
• “While the evidence in support of a novation must be ‘clear and convincing,’
the ‘whole question is one of fact and depends upon all the facts and
circumstances of the particular case,’ with the weight and sufficiency of the
proof being matters for the determination of the trier of the facts under the
general rules applicable to civil actions.” (Alexander, supra, 37 Cal.2d at pp.
860–861, internal citations omitted.)
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 961–963
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.141
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.450–50.464 (Matthew
27 California Legal Forms, Ch. 77, Discharge of Obligations, §§ 77.20,
77.280–77.282 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 21, Asserting
a Particular Construction of Contract, 21.58
CACI No. 337 CONTRACTS