I respectfully dissent.
As there are no special rules restricted to real estate contracts or to standard form agreements, the disposition of this matter is controlled by general principles of contract law. The majority accurately summarizes the applicable principles and I have no quarrel with their explication of them. Their opinion falters not in misstating the general principles but in failing to apply them to the standard form agreement before us. Their bright line standard, adopted from Krasley v. Superior Court (1980) 101 Cal.App.3d 425 [161 Cal.Rptr. 629], is enticing—judicial decisionmaking becomes a simple matter of inspecting boxes on standard forms—but runs counter to the reasonable expectation of the parties, an overarching standard which heretofore has governed our decisionmaking in this area.
The controlling principles can be easily summarized: A contract requires an offer and acceptance. As a general proposition, an acceptance must manifest an unconditional agreement to all the terms of the offer and an intention to be bound thereby. More particularly, an acceptance must comport with two separate but related principles. First, an acceptance must not change, add to, or qualify the terms of the offer. Second, in manifesting an intent to be bound an acceptance must be clear, positive and unambiguous; an acceptance, though consistent with the terms of the offer, can be so equivocal that it fails to clearly express an intention to be bound. As the majority acknowledges, the acceptance in this case complies with the first principle; though a counteroffer in form, it does not in substance vary from the offer. The only question is whether it is clear, positive and unambiguous.
*562Language is inherently susceptible to misunderstanding. Ambiguity abounds. For that reason the early common law required particular incantations to make an offer and formulaic expressions to accept. There is virtue in such an approach. However, the modem rule is otherwise. (See Rest.2d, Contracts, § 2, corns, a & b, p. 9.) Indeed, the trend, as exemplified by the Uniform Commercial Code, is toward even greater liberality in the construction of purported offers and acceptances.1 Whatever the merit of bright line formulations, the law reflects a preference for case-by-case determinations. Contract formation is not a matter of form but substance; there are no magic words and no magic forms essential to the creation of binding agreement.
Except for their use of a standard form agreement, the parties herein engaged in a classic offer and acceptance transaction. Stripped of the captions, boxes and other adornments, and subject to certain terms and conditions not relevant here, the writing at the heart of this dispute sets forth an offer to sell a 23.8-acre parcel for $44,000 with escrow to close within 30 days. Appellant expressed in writing a willingness to buy the parcel, reaffirming two critical terms: the purchase price (“Price to be $44,000 as above”) and the date of closing (“escrow to close on or before December 6, 1995”).
Relying on Krasley v. Superior Court, supra, 101 Cal.App.3d 425, a case whose facts are similar to our own, the majority concludes that despite the fact appellant’s acceptance merely reiterated the terms of the offer, it was ineffective. As in Krasley, appellant’s fate was sealed when he elected to convey his acceptance with words written in a box captioned “Counter to Counter Offer.” Under the Krasley rationale, appellant would be in no better position had he written: “I hereby accept your offer unequivocally and without conditions.” To borrow a phrase from Krasley, “credulity is strained” by such a result. (Id. at p. 430.) The majority in our case wisely avoids such extreme formalism. However, their moderate formalism is equally incredulous.
The majority concludes that by placing the language of acceptance in a preprinted block captioned “Counter to Counter Offer,” appellant’s purported acceptance did not express an intent to be bound but rather called for a response from defendant. The majority is simply wrong. The appellant’s handwritten language merely reaffirms the offer. The only other language in the box is preprinted and also reaffirms the offer: “Buyer accepts *563all other terms and conditions in the above counter offer.”2 Had appellant’s handwriting been intended as a true counter to respondent’s counteroffer it is reasonable to expect that appellant would have filled in the blank space provided for insertion of an expiration date. That space remains blank. No response was required.
The majority finds wisdom in the real estate industry’s adoption of standard forms. I agree. Parties who use standardized forms, the provisions of which have been subject to extended judicial scrutiny, are assured some measure of certainty in their transactions. The use of such forms should be encouraged. The Legislature may wish to prescribe a standard form real estate contract and require adherence to the language and boxes contained therein. Indeed, respondent could have specified in the offer that only a signature on the dotted line set aside for that purpose would constitute an effective acceptance. (See Civ. Code, § 1582.)
However, petitioner was not constrained by statute or the terms of the offer to a particular form of acceptance. Notwithstanding the absence of constraints, the trial court and the majority would treat the forms as sacrosanct and penalize those with the temerity to depart from the boxes provided. As the trial court bemoans, despite the convenience of standardized forms, “people still manage to create problems." Perhaps so. Nonetheless, our task is to ascertain their intentions from their language and conduct. The language and actions of the appellant clearly reflect an intent to accept respondent’s offer; no other construction is plausible. For that reason, I dissent.
A petition for a rehearing was denied November 23, 1998, and appellant’s petition for review by the Supreme Court was denied February 3, 1999.
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See section 2-207 of the Uniform Commercial Code (and corresponding Cal. U. Com. Code, § 2207) which provides that between merchants an acceptance can be effective even though it sets forth additional or different terms from the offer.
Williston’s observation is instructive: “Occasionally an offeree, out of ignorance or an abundance of caution, will insert a condition in his acceptance which merely expresses what would otherwise be implied in fact or in law from the offer. Because such a condition involves no qualification of the offeree’s assent to the terms of the offer, it is not in truth a conditional acceptance, and it does not preclude the formation of a contract.” (2 Williston, Law of Contracts (4th ed. 1991) § 6:15, p. 122, fn. omitted.)