Also known as: positive inducement · inducement
Written by attorneys · grounded in primary & secondary sources — see below
An offer, promise, or other factor that motivates a party to enter a transaction or include a particular term.
Phuong Pham, representing a defendant in a fraud trial, approached a key eyewitness and offered a cash payment if the witness would alter her account of events. The court determined that the offer constituted a prohibited positive inducement under professional conduct standards. As a result, the lawyer faced disciplinary sanctions and the witness testimony was excluded.
Paula Pierce leased commercial space from Premier Manufacturing with a promise to maintain the premises in good repair. When Pierce neglected the repairs, the landlord was deprived of a significant inducement to the making of the lease. The landlord terminated the lease and recovered damages after Pierce failed to cure within a reasonable time.
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Penelope Price executed a will leaving her estate to her niece after mistakenly believing her son had predeceased her. The court found clear and convincing evidence that a mistake in inducement affected the terms. Reformation was granted to conform the will to Price's actual intention.
Preston Pratt created a trust instrument that omitted a remainder interest due to a mistaken belief about tax consequences. The court received clear and convincing evidence that a mistake in inducement affected the terms. Reformation aligned the instrument with Pratt's true intention.
Paige Porter, an undercover officer, told a suspect that selling the substance was legal under a new statute. The false representation served as a positive inducement that created a substantial risk an otherwise law-abiding person would commit the offense. The court acquitted the defendant on entrapment grounds.
Patriot Insurance leased office space from Paragon Construction with a promise to maintain heating systems. When the landlord failed to repair the heating, the tenant was deprived of a significant inducement to the making of the lease. The tenant terminated the lease and recovered damages after the landlord did not cure within a reasonable time.
A positive inducement is an offer that motivates conduct, but professional conduct rules prohibit those that are unlawful, such as payments to witnesses for false testimony. The rule bars lawyers from offering inducements that violate other laws even if the offer itself is positive in nature.
Failure deprives the other party when the unperformed promise was a material reason for entering the lease and the breach is not cured after reasonable notice. The deprived party may then terminate or seek equitable relief.
Clear and convincing evidence must show both that a mistake of fact or law affected specific terms and what the donor's actual intention was. Direct evidence contradicting the document's plain meaning may be considered.
…has a right to prevent." Schenck v. United States , 249 U.S. 47, 52. The "substantive evils" about which he was speaking were inducement of insubordination in the military and naval forces of the United States and obstruction of enlistment while the country was at war. He was not enunciating a formal rule that there can be…