California Civil Jury Instructions (CACI)

1902. False Promise

[Name of plaintiff] claims [he/she] was harmed because [name of defendant] made a false promise. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] made a promise to [name of plaintiff];

2. That this promise was important to the transaction;

3. That [name of defendant] did not intend to perform this promise when [he/she] made it;

4. That [name of defendant] intended that [name of plaintiff] rely on this promise;

5. That [name of plaintiff] reasonably relied on [name of defendant]’s promise;

6. That [name of defendant] did not perform the promised act;

7. That [name of plaintiff] was harmed; and

8. That [name of plaintiff]’s reliance on [name of defendant]’s promise was a substantial factor in causing [his/her/its] harm.

New September 2003

Directions for Use

Insert brief description of transaction in elements 2 and 5 if it can be simply stated.

Sources and Authority

  • Civil Code section 1710 specifies four kinds of deceit. This instruction is based on the fourth one:

    A deceit, within the meaning of [section 1709], is either:

    1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

    2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;

    3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or,

    4. A promise, made without any intention of performing it.

  • “ ‘ “Promissory fraud” is a subspecies of fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. [¶] An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract.’ ” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973—974 [64 Cal.Rptr.2d 843, 938 P.2d 903], internal citations omitted.)
  • “A promise of future conduct is actionable as fraud only if made without a present intent to perform. ‘A declaration of intention, although in the nature of a promise, made in good faith, without intention to deceive, and in the honest expectation that it will be fulfilled, even though it is not carried out, does not constitute a fraud.’ Moreover, ‘ “something more than nonperformance is required to prove the defendant’s intent not to perform his promise.” . . . [I]f plaintiff adduces no further evidence of fraudulent intent than proof of nonperformance of an oral promise, he will never reach a jury.’ ” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 481 [55 Cal.Rptr.2d 225], internal citations omitted.)
  • “[I]n order to support a claim of fraud based upon the alleged failure to perform a promise, it must be shown that the promisor did not intend to perform at the time the promise was made.” (Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 157 [53 Cal.Rptr.2d 336], citing Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30 [216 Cal.Rptr. 130, 702 P.2d 212].)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 781—786

3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts, § 40.03[1][a] (Matthew Bender)

23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit (Matthew Bender)

10 California Points and Authorities, Ch. 105, Fraud and Deceit (Matthew Bender)

2 California Civil Practice: Torts (Thomson West) § 22:20