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Law School Case Brief

Roth v. Malson - 67 Cal. App. 4th 552, 79 Cal. Rptr. 2d 226 (1998)


Contract formation is governed by objective manifestations, not subjective intent of any individual involved. The test is what the outward manifestations of consent would lead a reasonable person to believe. 


Plaintiff buyer made a written offer to buy real property. Defendant seller made a written counteroffer on a standard form adopted by the California Association of Realtors. The form had a signature line, entitled "Acceptance," whereby plaintiff could accept the counteroffer. Instead of signing the "Acceptance" portion of the form, plaintiff signed a different portion of the form, entitled "Counter to Counter Offer." In a portion of the form denominated "Changes/Amendments," plaintiff also wrote in certain terms of the purchase, although it ultimately turned out that these terms did not vary from the terms of defendant's counteroffer. After defendant withdrew the property form the market, plaintiff filed suit for specific performance. On the parties' motions for summary judgment, the trial court concluded no contract was formed because plaintiff's "Counter to Counter Offer" was a qualified acceptance of defendant's counteroffer. Consequently, the trial court granted defendant's summary judgment motion and denied plaintiff's similar motion. The buyer sought review.


Was there a valid contract?




The court affirmed, and awarded defendant his costs on appeal, because no contract was formed in the absence of a response from defendant to plaintiff's counter to counter offer. The court reiterated that because plaintiff's counter-counter offer called for a response from defendant before a contract was formed, and in the absence of a response from defendant, no contract was formed. The court rejected the buyer’s argument that because his "Changes/Amendments" did not really change or amend anything, his response should be construed as an acceptance rather than a counter-counteroffer.

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