California Jury Instruction 309 Contract Formation—Acceptance

  1. Contract Formation—Acceptance

Both an offer and an acceptance are required to create a contract. [Name of defendant] contends that a contract was not created because the offer was never accepted. To 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 offer. [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




Directions for Use

Do not give this instruction unless the defendant has testified or offered other evidence in support of the contention.

This instruction assumes that the defendant is claiming to have not accepted plaintiff’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 offeror).


Sources and Authority

  • Civil Code section 1585.
  • “[T]erms proposed in an offer 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 counteroffer putting an end to the original offer.” (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 offeree 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 different terms from those offered. Otherwise, the ‘acceptance’ becomes a counteroffer.” (Guzman v. Visalia Community Bank (1999) 71 Cal.App.4th 1370, 1376 [84 Cal.Rptr.2d 581].)

  • “The interpretation of the purported acceptance or rejection of an offer 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 offer, which may be manifested by conduct as well as by words, must be expressed or communicated by the offeree to the offeror.” (Russell v. Union Oil Co. (1970) 7 Cal.App.3d 110, 114 [86 Cal.Rptr. 424].)

  • “The Restatement Second of Contracts, section 60 provides, ‘If an offer 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 offer 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. Interpretation of offer. If the offeror prescribes the only way in which his offer may be accepted, an acceptance in any other way is a counter-offer. But frequently in regard to the details of methods of acceptance, the offeror’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.’ [f] Similarly, Restatement 2d, section 30 provides in relevant part, ‘Unless otherwise indicated by the language or the circumstances, an offer 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. Offers 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 Group Holdings, LLC v. Keck (2014) 232 Cal.App.4th 294, 311-312 [181 Cal.Rptr.3d 399], original italics, footnote omitted.)

Secondary Sources

1 Witkin, Summary of California Law (11th 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 Standard Contractual Provisions, § 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


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