On September 2, 1971, 40 years ago today, an exterminator wrote to Donald Krobatsch to advise that the house that Krobatsch and his wife had contracted to buy from Natalie Weintraub was infested by cockroaches. The Krobatsches had signed the purchase contract after seeing the home only while it was illuminated. Prior to closing, however, they visited the house in the evening. When they turned on the lights, they were “astonished to see roaches literally running in all directions, up the walls, drapes, etc.” This was despite the fact that an exterminator had only recently serviced the house.
After their own exterminator reported to the Krobatsches that the house was infested, the Krobatsches refused to proceed with closing. Weintraub sued the Krobatsches, originally for specific performance but eventually only for retention of the Krobatsches’ deposit. Weintraub also sued the broker, who counterclaimed for a commission. All parties sought summary judgment. The Law Division denied the motions of the Krobatsches and the broker, but granted Weintraub’s motion against the Krobatsches. On appeal, the Appellate Division affirmed the summary judgment for Weintraub, but held that the Krobatsches were also responsible for the broker’s commission since they had failed to close.
The Supreme Court granted certification. Weintraub argued that even if she were aware of the infestation, under the common law rule, “she would have been under no duty to speak and that consequently no complaint by the purchasers may legally be grounded on her silence.”
A 1942 Massachusetts Supreme Judicial Court case had so held on similar facts involving termite infestation, but Justice Jacobs, writing for a unanimous Court, found that decision to be “one of a line of ‘singularly unappetizing cases,'” quoting Prosser on Torts. Justice Jacobs doubted that the case even still represented the view of the Massachusetts Supreme Judicial Court. “In any event, we are certain that it does not represent our sense of justice or fair dealing and it has understandably been rejected in persuasive opinion elsewhere.”
In language that has become famous, Justice Jacobs stated that “[o[ur courts have come a long way since the days when the judicial emphasis was on formal rules and ancient precedents rather than on modern concepts of justice and fair dealing.” The common law rule that there is no duty to speak no matter how inequitable that policy is in the circumstances did not comport with other Supreme Court of New Jersey decisions that were “based on current notions of what is ‘right and just.'” For example, in Reste Realty Corp. v. Cooper, 53 N.J. 444 (1969), the Court had held that a landlord had a duty to disclose “a material latent condition, known to him but unobservable by the tenant,” and that it would be “a wholly inequitable application of caveat emptor to charge [the tenant] with knowledge” of the concealed condition. Accordingly, the Court remanded the case for trial.
Weintraub v. Krobatsch remains a landmark case. Many law students read it in their first-year torts class. The law has indeed “come a long way,” led by the Supreme Court of New Jersey.