309 . Contract Formation - Acceptance
Both an of fer and an acceptance are requir ed to create a contract. [ Name
of defendant ] contends that a contract was not created because the o f fer
was never accepted. T o overcome this contention, [ name of plaintiff ] must
prove both of the following:
1. That [ name of defendant ] agreed to be bound by the terms of the
of fer. [If [ name of defendant ] agreed to be bound only on certain
conditions, or if [he/she/ nonbinary pronoun /it] introduced a new
term into the bargain, then there was no acceptance]; and
2. That [ name of defendant ] communicated [his/her/ nonbinary
pronoun /its] agreement to [ name of plaintiff ].
If [ name of plaintiff ] did not prove both of the above, then a contract was
not created.
New September 2003; Revised May 2020
Do not give this instruction unless the defendant has testified or of fered other
evidence in support of the contention.
This instruction assumes that the defendant is claiming to have not accepted
plaintif f’ s offer . Change the identities of the parties in the indented paragraphs if,
under the facts of the case, the roles of the parties are switched (e.g., if defendant
was the alleged of feror).
Sources and Authority
• Acceptance. Civil Code section 1585.
• “[T]erms proposed in an of fer must be met exactly , precisely and unequivocally
for its acceptance to result in the formation of a binding contract; and a qualified
acceptance amounts to a new proposal or counterof fer putting an end to the
original of fer .” ( Panagotacos v . Bank of America (1998) 60 Cal.App.4th 851,
855-856 [70 Cal.Rptr .2d 595].)
• “[I]t is not necessarily true that any communication other than an unequivocal
acceptance is a rejection. Thus, an acceptance is not invalidated by the fact that
it is ‘grumbling,’ or that the of feree makes some simultaneous ‘request.’
Nevertheless, it must appear that the ‘grumble’ does not go so far as to make it
doubtful that the expression is really one of assent. Similarly , the ‘request’ must
not add additional or dif ferent terms from those of fered. Otherwise, the
‘acceptance’ becomes a counterof fer .” ( Guzman v . V isalia Community Bank
(1999) 71 Cal.App.4th 1370, 1376 [84 Cal.Rptr .2d 581].)
• “The interpretation of the purported acceptance or rejection of an of fer is a
question of fact. Further , based on the general rule that manifested mutual assent
rather than actual mental assent is the essential element in the formation of
contracts, the test of the true meaning of an acceptance or rejection is not what
the party making it thought it meant or intended it to mean. Rather , the test is
what a reasonable person in the position of the parties would have thought it
meant.” ( Guzman, supra, 71 Cal.App.4th at pp. 1376-1377.)
• “Acceptance of an of fer , which may be manifested by conduct as well as by
words, must be expressed or communicated by the of feree to the of feror .”
( Russell v . Union Oil Co. (1970) 7 Cal.App.3d 110, 1 14 [86 Cal.Rptr . 424].)
• “The Restatement Second of Contracts, section 60 provides, ‘If an of fer
prescribes the place, time or manner of acceptance its terms in this respect must
be complied with in order to create a contract. If an of fer merely suggests a
permitted place, time or manner of acceptance, another method of acceptance is
not precluded.’ Comment a to Restatement 2d, section 60 provides, ‘a.
Interpr etation of offer . If the of feror prescribes the only way in which his of fer
may be accepted, an acceptance in any other way is a counter-o ffer . But
frequently in regard to the details of methods of acceptance, the of feror ’ s
language, if fairly interpreted, amounts merely to a statement of a satisfactory
method of acceptance, without positive requirement that this method shall be
followed.’ [¶] Similarly , Restatement 2d, section 30 provides in relevant part,
‘Unless otherwise indicated by the language or the circumstances, an of fer
invites acceptance in any manner and by any medium reasonable in the
circumstances.’ Comment b to Restatement 2d section 30 states: ‘ Invited form .
Insistence on a particular form of acceptance is unusual. Of fers often make no
express reference to the form of acceptance; sometimes ambiguous language is
used. Language referring to a particular mode of acceptance is often intended
and understood as suggestion rather than limitation; the suggested mode is then
authorized, but other modes are not precluded. In other cases language which in
terms refers to the mode of acceptance is intended and understood as referring to
some more important aspect of the transaction, such as the time limit for
acceptance.’ ” ( Pacific Corporate Gr oup Holdings, LLC v . Keck (2014) 232
Cal.App.4th 294, 31 1-312 [181 Cal.Rptr .3d 399], original italics, footnote
Secondary Sources
1 W itkin, Summary of California Law (1 1th ed. 2017) Contracts, §§ 180-192
13 California Forms of Pleading and Practice, Ch. 140, Contracts , § 140.22
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts , § 50.352 (Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standar d
Contractual Pr ovisions , § 75.214 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract - Absence of Essential Element , 13.25-13.31
CONTRACTS CACI No. 309
Page last reviewed May 2024
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