Yuan Kane Ing v. Levy 326 N.E.2d 51 DRUCKER, Justice. Plaintiff, the owner of a commercial building, brought a forcible entry and detainer action against defendant. Defendant in his answer raised affirmative defenses alleging numerous breaches by plaintiff of her obligations under the lease and claiming that these breaches relieved him of his obligation to pay rent. Defendant was also given leave to file a counterclaim in which he requested money damages and equitable relief to prevent the termination of the lease. The court found for plaintiff on all issues, and a judgment for possession and $2500 for overdue rent was entered on her behalf. Defendant's basic contentions on appeal are that (1) the findings of the trial court are against the manifest weight of the evidence, and (2) the court erred in refusing to grant a jury trial on his counterclaim. In August 1971 defendant, who is a real estate broker, leased a storefront office in plaintiff's commercial building at 5782 North Lincoln Avenue at a monthly rental of $300. The lease was for a term of four **53 years with an option to renew for an additional two years. There was no express covenant imposing on plaintiff the duty to repair the premises. She was, however, required to provide and maintain the heating and air conditioning system. It was expressly provided that plaintiff was not to be held liable for damages suffered by defendant due to her failure to keep the premises or the building in good repair. FN* FN* We note that the Landlord and Tenant Act has recently been amended to make void as against public policy such exculpatory clauses. See Ill.Rev.Stat.1973, ch. 80, par. 91. In August 1973 defendant notified plaintiff in writing that the ceiling of his office's bathroom was leaking. On December 3, 1973, a ‘Landlord's Five Days' Notice’ was served on defendant. Payment of $1300 in overdue rent was demanded. On December 14, 1973, defendant notified plaintiff, in writing, that he was prepared to pay all rent which was due if she would repair the premises. On January 17, 1974, plaintiff filed the instant forcible entry and detainer action. In his answer defendant raised the affirmative defense that he was relieved of his obligation to pay rent due to numerous breaches by plaintiff of her obligations under the lease. He alleged that she failed to repair leaks in the roof, pipes running through the ceiling of his office and defects in the heating and air conditioning system. Defendant was given leave to file a counterclaim in which he raised essentially the same factual allegations as appeared in his answer. He requested equitable relief in the form of an injunction to enjoin defendant from attempting to declare a forfeiture of the lease, and in a second *891 count $5,000 as compensatory damages and $10,000 as punitive damages. He did not dispute plaintiff's allegations as to nonpayment of rent. At trial plaintiff called defendant as an adverse witness. He testified that subsequent to his being served with the five days' notice, he met with plaintiff at his office. He told her, ‘as soon as these (leaks) are fixed or any attempt is made to fix them, I'll pay the rent.’ She replied, ‘Okay.’ Although she promised to send a plumber to make repairs, one did not appear. Defendant and his employees continued to occupy the premises. He did not pay any rent after receiving the five days' notice. Defendant was then called as a witness on his own behalf. He testified that he spent over $5,200 ‘fixing up’ the office when he moved in. Philip Kovalsky testified on behalf of defendant that he was present in December 1973 when defendant promised plaintiff to pay the rent he owed if plaintiff would fix the leaks. Plaintiff testified as a rebuttal witness on her own behalf that she sent a plumber to defendant's office in December 1973 to fix the leaks, but he was refused admittance. Opinion Defendant did not question the amount of the money judgment for rent but requested equitable relief to prevent dispossession. It was apparently defendant's theory at trial that he was relieved of his duty to pay rent due to plaintiff's alleged violation of her obligations under the lease. In addition, he introduced evidence which, he asserts, demonstrated that subsequent to the issuance of the five days' notice, he reached an agreement with plaintiff to pay rent only if she initiated repairs of the premises, and that he was at all times prepared to tender such rent upon fulfillment by plaintiff of her obligation under the agreement. [1] We believe that defendant completely misapprehended the law governing the landlord-tenant relationship. Although the Supreme Court in a landmark decision **54 has held that in some instances a landlord's breach of his covenants under a lease may relieve a tenant of the obligation to pay rent, this holding was made applicable exclusively to ‘the occupancy of multiple dwelling units.’ (Jack Spring, Inc. v. Little, 50 Ill.2d 361, 367, 280 N.E.2d 208, 218.) In justifying its abandonment of the common law rules in this area, the court alluded to the unequal bargaining positions of the modern urban apartment dweller and the landlord who ‘sells housing as a commercial businessman and has much greater opportunity, incentive and capacity to inspect and maintain the condition of his building.’ (Little at 365, 280 N.E.2d at 216 citing Javins v. First National Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071.) No Illinois court has extended *892 the Little rule to commercial leases, and since in the case at bar we are reviewing a dispute which arose over a commercial lease, we must apply traditional common law principles. [2] [3] [4] It has traditionally been held that a landlord is not contractually bound to repair or maintain leased premises unless he has expressly agreed to do so by written covenants. (Moldenhauer v. Krynski, 62 Ill.App.2d 382, 210 N.E.2d 809.) Even if an express covenant to repair has been given, the usual construction is that the covenants of the lessor and lessee are independent, and therefore the lessee may not treat the lessor's failure to repair as a basis for stopping rent payments. (Truman v. Rodesch, 168 Ill.App. 304.) Moreover, a landlord's promise to repair made after the execution of a lease is made Nudum pactum and is thus unenforceable against him. See Forshey v. Johnston, 132 Ill.App.2d 1106, 271 N.E.2d 81; Margolen v. DeHaan, 226 Ill.App. 110. [5] [6] In reality the factual situation presented in the instant case is the reverse of Little. Defendant, the tenant, a real estate broker, entered into a commercial lease with plaintiff, the landlord, a woman who, the record reveals, had little command of the English language. The lease included no express covenant to repair, and, as we noted above, even if one existed, plaintiff's violation of it would not have justified the withholding of rent. Furthermore, defendant's asserted agreement with plaintiff to pay rent upon repair of the premises is clearly unenforceable. From the foregoing it is clear that since defendant failed to unconditionally tender all the rent which was due, the court below was correct in finding for plaintiff on all issues. Chapman v. Woolsey, 4 Ill.App.2d 261, 124 N.E.2d 366. [7] Defendant also contends that the court erred in denying his request for a jury trial on his counterclaim. As made clear by the court's finding, defendant's counterclaim for damages was without basis by virtue of the non-liability of lessor clause of the lease and thus did not even give rise to an issue which could be presented to a jury. [8] As to defendant's equitable counterclaim, we note that, essentially, it sought to enjoin the actions of plaintiff. Since in actions of this nature there is no statutory right to a jury trial and, morever, even if a jury is empaneled, it serves a purely advisory function, it is clear that defendant suffered no prejudice as a result of the court's denial of his request for a jury trial. Fisher v. Burgiel, 382 Ill. 42, 46 N.E.2d 380. The judgment entered below is affirmed. Affirmed. LORENZ and SULLIVAN, JJ., concur. [案情] 被告向原告承租了一套前面是商店后面是办公室的房子。双方没有在合同中约定房屋由谁修缮，被告只要求原告提供取暖和空调设备。后被告发现房屋出现裂缝并以此为由拒付租金，原告催租未果遂起诉法院。双方争议的焦点在于原告是否负有修缮房屋的义务？原告的没有修缮是否可以使被告免付租金？ [评析] 默示担保最初是法律强加给货物买卖中卖方的义务，其产生是因为货物买卖中卖方的交易地位往往优越于买方，法律为了保护弱势的买方而为当事人增补的条款和义务。随着20世纪社会本位思想的发展，经济自由主义和意思自治相对衰落，合同的解释突破了绝对意思自治的原则，默示条款得到了很大发展。英美法上的默示条款分为事实上的默示条款、法定的默示条款和自由裁量的默示条款。法定的默示条款一般适用在特定种类的合同中，是由法律直接加在当事人身上的义务，具有特定性和法定义务性双重特性。这类合同主要包括：房屋租赁合同、担保合同、个人服务合同和买卖合同。 但是对于房屋租赁合同中默示条款的解释也是区别对待的。对于房屋特定用途的默示担保是依个案不同的。提供经过装修的房屋的义务和没有经过装修的房屋的义务是不同的，普通的民用住房出租和商业店面出租不同，即当事人事实上的预期是不同的，因此法律强加的义务不同。先例Jack Spring, Inc. v. Little, 280 N.E.2d 208 (Ill. 1972) 中，合同双方为商人和消费者。当事人之间签订的是一个两个月的短期租赁合同，租房的前提在于房屋设施齐备可以立即入住（enjoy without delay and without the expense of preparing it for use），而不是还需要承租人花费时间来检查房屋是否完好无损。因此古老的规则“出租人不负修缮义务，除非在合同中明确约定。”不再适合于这种房屋租赁合同了，需要法官为当事人创设义务。而本案中，租赁双方都是商人，当事人租房的目的侧重于对房屋这个不动产的有形占有，只要不是有危及安全的潜在条件就认为是符合了要求。承租方可以根据自己的用途来装修房屋，在这一点上类似于古老的“多能而无专长”的农民式的租赁。况且商人之间交易谈判能力相当，不存在失衡的可能，因此法律不需要打破这种平衡而为当事人创设义务，意思自治在这个领域还是可以很好的发挥作用。 被告主张原告得知天花板出现裂缝后答应派人修理的抗辩，我认为是缺乏对价的，因此也不能强制执行。原告出租其房屋的使用权并且提供取暖和空调设备已经构成了被告交付租金的对价，后来答应修缮的诺言缺乏被告的对价支持。 另外我们可以看出英美法系的默示条款与大陆法系上的合同补缺是截然不同的。大陆法系没有所谓的默示条款，但是有相应的合同补缺规则，如根据交易惯例、行业惯例等。大陆法系的补缺前提是在不违反成文法规定的框架内做出公平合理的补充，而英美法中则是法官造法，法官可以推翻先例的规则，适应社会生活的发展要求而创设新的规则，因此在时效性上要明显强于大陆法系的做法。