California Jury Instruction CACI 310 Contract Formation—Acceptance by Silence

  1. Contract Formation—Acceptance by Silence

Ordinarily, if a person does not say or do anything in response to another party’s offer, then the person has not accepted the offer. However, if [name of plaintiff] proves that both [he/she/nonbinary pronoun/ it] and [name of defendant] understood silence or inaction to mean that [name of defendant] had accepted [name of plaintiff]’s offer, then there was an acceptance.

New September 2003; Revised May 2020

Directions for Use

This instruction assumes that the defendant is claiming to have not accepted plaintiff’s offer. Change the identities of the parties in the last two sets of brackets if, under the facts of the case, the roles of the parties are switched (e.g., if defendant was the alleged offeror).

This instruction should be read in conjunction with and immediately after CACI No. 309, Contract Formation—Acceptance, if acceptance by silence is an issue.

Sources and Authority

  • Consent by Acceptance of Benefits. Civil Code section 1589.
  • Because acceptance must be communicated, “[s]ilence in the face of an offer is not an acceptance, unless there is a relationship between the parties or a previous course of dealing pursuant to which silence would be understood as acceptance.” (Southern California Acoustics Co., Inc. v. C. V. Holder, Inc. (1969) 71 Cal.2d 719, 722 [79 Cal.Rptr. 319, 456 P.2d 975].)
  • Acceptance may also be inferred from inaction where one has a duty to act, and from retention of the offered benefit. (Golden Eagle Insurance Co. v. Foremost Insurance Co. (1993) 20 Cal.App.4th 1372, 1386 [25 Cal.Rptr.2d 242].)

Secondary Sources

1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 193-197

13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.22 (Matthew Bender)

27 California Legal Forms, Ch. 75, Formation of Contracts and Standard Contractual Provisions, § 75.11 (Matthew Bender)

1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking or Defending Existence of Contract—Absence of Essential Element, 13.31

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