We have seen in our short study of the common law of contract that a promise standing alone does not constitute a contractual obligation. Recent developments in tort litigation, however, indicate that a man's promise may result in liability if personal injury or property damage occurs. The case of Cintrone v. Hertz Truck Leasing & Rental Service, is illustrative:

CINTRONE V. HERTZ TRUCK LEASING & RENTAL SERVICE
45 N.J. 434, 212 A.2d 769 (1965)

Francis, J. Plaintiff Francisco Cintrone was injured while a passenger in a truck leased by his employer from the defendant. In his complaint in this action he charged that the accident in which he was injured resulted from defendant's negligent inspection or maintenance of the leased vehicle or from a breach of defendant's warranty that the vehicle was fit and safe for use. (Whether the alleged warranty was express or implied was not specified.) The trial court dismissed the warranty claim, and submitted the issues of defendant's negligence and plaintiff's contributory negligence to the jury, which found in favor of the defendant. Plaintiff's appeal from the adverse judgement was certified on our own motion before the Appellate Division acted upon it. .

Defendant Hertz Truck Leasing & Rental Service is in the business of leasing and renting various types of motor vehicles to the public. Plaintiff's employer, Contract Packers, Inc., had leased nine trucks from defendant for use in its business. One of them was a 1959 Ford, 22 feet long and 11 feet high. The leasing of the trucks was on a long-term basis. Neither party put the lease in evidence but oral testimony was introduced as to its terms.

. . . Under the lease the trucks were kept at Contract Packers' premises but Hertz agreed to service, repair and maintain them. The arrangement was that once a year or every 18,000 miles, whichever came first, Hertz was to provide "preventive maintenance." This meant that the vehicle was taken from the lessee (who was given a replacement) and brought to Hertz' garage. There the entire vehicle was examined and serviced; body, motor, brakes, springs, steering mechanism, lights, etc., after which it was returned to the lessee. In addition, every 14 days a Hertz mechanic was sent to Contract Packers' premises to inspect the trucks. He would go over them, checking the brake pedal reserve, the clutch, hand brake, lights, horn, steering and signal lights, etc. If repairs or adjustments were needed and could be made on the spot, they were taken care of immediately. If not, the truck would be removed to the Hertz garage and if necessary a replacement vehicle provided.

Moreover, under the arrangement between the parties, at the end of each day's use the Contract Packers driver who had driven one of the trucks that day brought it to the Hertz garage where it would be "gassed up" for the next day. While this was being done, the procedure was for each driver to report any trouble he had or complaint he wished to make in,connection with the operation of his truck. He would fill out an A.V.D. (alleged vehicle defect) form specifying the problem. If a complaint related to some minor difficulty that could be corrected quickly, it would be taken care of immediately and after the gassing operation was completed, the driver would be allowed to drive the vehicle back to his employer's place of business. (The impression gained from the record is that Contract Packers loaded the trucks during the night so as to have them ready to start on the delivery route in the morning.) If the difficulty required more attention but still was of a minor nature, the driver would be allowed to drive it back to his employer's yard. Then when Hertz' night shift mechanics came on duty (the garage operated 24 hours a day, seven days a week), they would pick up the truck, drive it to the garage, make the repairs or adjustments and return it to Contract Packers so as to have it available for morning use. There is some indication in the evidence that a simple repair or adjustment might be taken care of at the lessee's location without removal to the Hertz garage.

Whenever a needed repair which a driver had brought to Hertz' attention could not be made during gassing up, or on the lessee's lot at night, the truck would be removed from service and replaced by another. Then on completion of the work, the vehicle would be returned to the lessee and the substitute recalled. If a complaint related to allegedly defective brakes, the truck would be replaced. In such a situation the brake pedal reserve would be checked, and the master cylinder examined for fluid level. Thereafter the truck would be tried out in the yard, and taken out on the road for a testing of the brakes at higher speeds. Following the remedial operation, the vehicle would be returned to the lessee.

The plaintiff Cintrone had been in the employ of Contract Packers as a driver-helper for three years before the accident in question which occurred on Monday, April 3, 1961. On Wednesday, Thursday and Friday of the previous week he had driven the leased 1959 Ford truck described above. He testified that at the end of the run on each of those days he reported the brakes were not working and needed adjustment. The three complaints were made at the Hertz garage while refueling by filling out two A.V.D. slips each day. One remained with Hertz, the other went to his employer. Hertz apparently had no record of the three slips allegedly left with it by Cintrone. Nor did plaintiff produce at the trial the copies which he said went to his employer. In any event, so far as Cintrone knew no repairs or adjustments were made to the brakes. . . .

On April 3, 1961 the Ford truck was scheduled for a delivery trip. Cintrone was to be the helper that day and one Robert Sottilare, another Contract Packers employee, the driver. The men reported for work at about 7:00 a.m. At the trial Sottilare testified that before they left the employer's lot Cintrone spoke to him about the brakes. Cintrone made no mention of this in his testimony. Sottilare said he tested the brakes before driving away and they seemed to be all right.

[Sottilare testified that the brakes continued to work properly until the time of the accident, around noontime, when the brakes suddenly failed and the truck ran into a low overhead bridge. Both men were injured. The truck was returned to Contract Packers' and eight days later it was taken back to Hertz' garage.]

The plaintiff adduced no proof at the trial, expert or otherwise, as to what, if anything, specific was defective about the brakes at the time of the accident. Likewise there was no proof to suggest that the truck had suffered an accident or any kind of an untoward incident, which did affect or which might have affected the brakes, from the time it left the yard in the morning until the collision with the overhead structure. Nor was evidence introduced of any travel over uneven or bumpy roads during the trip.

The circumstances under which the verdict in favor of the defendant was returned are strongly indicative that the jury found no negligence on the part of the defendant, and no contributory negligence on the part of the plaintiff. The record reveals that during their deliberations the jury sent a note to the judge saying: "If we feel that there is insufficient evidence to prove that either party is guilty of negligence -- can we use this as a cause for throwing the case out?" After an affirmative answer from the judge, the jury again retired and in about five minutes returned with the defendant's verdict. On this appeal, although plaintiff challenges the propriety of the trial court's action in submitting the issue of his contributory negligence to the jury, he accepts the finding that the failure of the brakes at the time of the accident was not chargeable to negligence on defendant's part. Plaintiff seeks a reversal of the adverse judgment, however, on the ground that the contractual relationship between Hertz and his employer gave rise to an implied continuing promissory warranty by Hertz that the truck in question was fit for the purposes for which plaintiff's employer rented it, i.e., operation and transportation of goods on the highways. He urges further that under the proof adduced the failure of the brakes and the consequent accident created a factual issue for jury determination as to whether there was a breach of the implied warranty. Therefore he claims the court erred in refusing to submit that issue for jury consideration

Prior decisions of this court have made it plain that if the relationship in the present case between Contract Packers and Hertz were manufacturer or dealer and purchaser, an implied warranty of fitness for operation on the public highway would have come into existence at the time Or the sale. Moreover, under those cases, breach of the warranty which caused personal injury to an employee of the purchaser would be actionable by the employee. It must be recognized, however, that the occasions have been relatively few when the courts have been asked to imply warranties in personal injury cases as an incident of transactions other than sales of chattels. Certainly in New Jersey there is no case precisely like this one involving the contention that a bailment for hire of a motor vehicle by a bailor or lessor engaged in such rental business carries with it an implied warranty that the rented vehicles is fit and will continue to be fit for the rental period for the ordinary and expected purposes of the rental.

There is no good reason for restricting such warranties to sales. Warranties of fitness are regarded by law as an incident of a transaction because one party to the relationship is in a better position than the other to know and control the condition of the chattel transferred and to distribute the losses which may occur because of a dangerous condition the chattel possesses. These factors make it likely that the party acquiring possession of the article will assume it is in a safe condition for use and therefore refrain from taking precautionary measures himself. 2 Harper and James, Torts, 28.19 (1956). Harper and James point out that the presence of such factors in sales set in motion the development of the doctrine of implied warranties. They decry the notion, however, that because the doctrine had its origin in sales, the warranty protection should be withheld in other situations when the same considerations obtain. And they argue persuasively that in the face of present-day forms of business enterprise, development of the warranty doctrine in sales should point the way by suggestive analogy to similar results in cases where a commodity is leased. Id., at p. 1577. . . .

[S]ee Farnsworth, "Implied Warranties of Quality in Non-Sales Cases," 57 Colum. L.Rev. 653,673-674 (1957):

"The expansion of enterprises engaged solely in bailment for hire seems to justify increasing imposition of absolute warranties, at least to the extent that they would be imposed upon a seller of similarly used goods. In addition, reliance is greater than in the typical sale, for it is generally true that the bailee for hire spends less time shopping for the article than he would in selecting like goods to be purchased, and since the item is not one he expects to own, he will usually be less competent in judging its quality". . ..

We may take judicial notice of the growth of the business of renting motor vehicles, trucks and pleasure cars.¹

The nature of the U-drive-it enterprise is such that a heavy burden of responsibility for the safety of lessees and for members of the public must be imposed upon it. The courts have long accepted the fact that defective trucks and cars are dangerous instrumentalities on highways. They present great potentiality for harm to other highway users as well as to their own drivers and passengers. Therefore the offering to the public of trucks and pleasure vehicles for hire necessarily carries with it a presentation that they are fit for operation. This representation is of major significance because both new and used cars and trucks are rented. In fact, as we were advised at oral argument, the rental rates are the same whether a new or used vehicle is supplied. In other words, the lessor in effect says to the customer that the representation of fitness for use is the same whether the vehicle supplied is new or old. From the standpoint of service to the customer, therefore, the law cannot justly accept any distinction between the obligation assumed by a U-drive-it company whether the vehicle is new or old when rented. The nature of the business is such that the customer is expected to, and in fact must, rely ordinarily on the express or implied representation of fitness for immediate use. (Citations omitted.) To illustrate, if a traveler comes into an airport and needs a car for a short period and rents one from a U-drive-it agency, when he is "put in the driver's seat" his reliance on the fitness of the car assigned to him for the rental period whether new or used usually is absolute. In such circumstances the relationship between the parties fairly calls for an implied warranty of fitness for use, at lease equal to that assumed by a new car manufacturer. The content of such warranty must be that the car will not fail mechanically during the rental period.

In the case before us, it is just as obvious that when a company like Contract Packers rents trucks for limited or extended periods for use in its occupation of transportation of goods, it is just as obvious that when a company like Contract Packers rents trucks for limited or extended periods for use in its occupation of transportation of goods,it too relies on the express or implied representation of the person in the business of supplying vehicles for hire, that they are fit for such use.

A bailor for hire, such as a person in the U-drive-it business, puts motor vehicles in the stream of commerce in a fashion not unlike a manufacturer or retailer. In fact such a bailor puts the vehicle he buys and then rents to the public to more sustained use on the highways than most ordinary car purchasers. The very nature of the business is such that the bailee, his employees, passengers and the traveling public are exposed to a greater quantum of potential danger of harm from defective vehicles than usually arises out of sales by the manufacturer. . . .

When the implied warranty or representation of fitness arises, for how long should it be considered viable? Since the exposure of the user and the public to ha-m is great if the rented vehicle fails during ordinary use on a highway, the answer must be that it continues for the agreed rental period. The public interests involved are justly served only by treating an obligation of that nature as an incident of the business enterprise. The operator of the rental business must be regarded as possessing expertise with respect to the service life and fitness of his vehicles for use. That expertise ought to put him in a better position than the bailee to detect or to anticipate flaws or defects or fatigue in his vehicles. Moreover, as between bailor for hire and bailee the liability for flaws or defects not discoverable by ordinary care in inspecting or testing ought to rest with the bailor just as it rests with a manufacturer who buys components containing latent defects from another maker, and installs them in the completed product, or just as it rests with a retailer at the point of sale to the consumer. And, with respect to failure of a rented vehicle from fatigue, since control of the length of the lease is in the lessor, such risk is one which, in the interest of the consuming public as well as the members of the public traveling the highways, ought to be imposed on the rental business.

The warranty or representation of fitness is not dependent upon existence of Hertz' additional undertaking to service and maintain the trucks while they were leased. That undertaking serves particularly to instill reliance in Contract Packers upon mechanical operability of the trucks throughout the rental period. (But the warranty or representation that the vehicles will not fail for that period sprang into existence on the making of the agreement to rent the trucks, and was an incident thereof irrespective of the service and maintenance undertaking.) From the standpoint of the U-drive-it company, the agreement to keep them in repair is important as a source of revenue. But, in addition, it furnishes a means of protection for the bailor in discharging the obligation of the warranty or representation. The retained supervision and control permit Hertz to see to it that the vehicles remain fit for use, or to withdraw them from operation and replace them if the estimated service life is at or approaching an end, or if for any reason continued fitness for use is questionable. . . .

Accordingly, we are of the opinion (1) that the leasing agreement gave rise to a continuing implied promissory warranty that the leased trucks would be fit for plaintiff's employer's use for the duration of the lease, (2) that the nature of the U-drive-it business is such that the responsibility of Hertz may properly be stated in terms of strict liability in tort (citation omitted), and (3) that the evidence created a factual issue for determination by the jury as to whether defendant Hertz had been guilty of a breach of that warranty which produced the collision and plaintiff's injury. . . .

Defendant contends that since there is no privity of contract between plaintiff and Hertz, plaintiff has no cause of action for breach of an implied warranty of fitness arising from the bailment relationship created thereby. Obviously Hertz knew when the leasing took place that Contract Packers' employees would be using the trucks as drivers or helpers. In such a situation absence of privity between plaintiff and Hertz is of no legal consequence. (Citations omitted.)

Moreover, as we have said, when a U-drive-it company, by a lease arrangement such as in this case, makes trucks available for rental knowing they will be dangerous to users and members of the public, if defective, a representation exists that they are fit for such use. If a mishap occurs while they are being operated by the lessee or his employees which constitutes a breach of that representation, the lessor is subjected to strict liability in tort for resultant injuries to such employees. In the framework of such a right of action, absence of privity of contract between the injured person and Hertz is immaterial. (Citation omitted.)

Review this case in light of Numbers 30:2 and Deuteronomy 23:23.