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Roth v. Malson

Citation. 79 Cal. Rptr. 2d 226 (Cal. App. 1998)
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Brief Fact Summary.

Roth sued Malthon for specific performance of a contract to purchase real estate after Roth agreed to Malthon’s purchase price and Malson rejected the offer.

Synopsis of Rule of Law.

A response to an offer must be absolute and unqualified to be considered an acceptance.


Malson placed real estate on the market for $47,600. Roth offered to purchase the property for $41,650 and close 30 days after acceptance of the offer. Malson sent a counter-offer for $44,000 and Roth accepted. Roth, however, added a stipulation to close on or before December 6th. Malson rejected the counter offer and Roth sued for specific performance. Summary judgment was granted to Malthon.


Whether a response to an offer must be absolute and unqualified to be considered an acceptance?


Yes. The judgment of the trial court is affirmed. Roth’s response to Malson’s counteroffer was not an unqualified and absolute acceptance.


(Raye, J.) Roth intended to accept the counteroffer because Roth did not identify a deadline to respond to his communication. Roth’s response should be considered an acceptance because Roth’s counteroffer did not change any of the terms of the original counteroffer.


A party that tries to enforce a counter-counter offer can be expected not to perform the terms of the contract if the contract turns out to be unfavorable. An acceptance that differs from the offer qualifies as a counteroffer.

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