(concurring in part and dissenting in part with whom Reardon and Wilkins, JJ., join). These *204are two actions of summary process under G. L. c. 239 against tenants who admittedly had failed to pay their rent for dwelling units for a number of months. In each action the landlord seeks to recover possession of the dwelling unit and also the unpaid rent.1
The tenants defend principally on the following grounds stated in each of their similar answers: “that prior to her refusal to pay rent, plaintiff was in violation of the State Sanitary Code including . . . [various conditions allegedly violating specifically cited regulations of the Code], that the Housing Inspection Department had inspected defendant’s apartment . . . and found said apartment to be in violation of the State Sanitary Code and that the conditions . . . [which allegedly violated the Code] were such that ‘said violations may endanger or materially impair the health or safety and the well being of any tenant therein . . .;’ and that said violations and conditions . . . render the apartment uninhabitable and such conditions continue today.” The tenants’ allegations of specific violations of the Code were based on written inspection reports issued by appropriate housing inspectors describing those same conditions and concluding “that said violations may endanger or materially impair the health or safety, and the well-being of any tenant therein or persons occupying said property.”
The answer of each tenant alleges that the landlord in these cases is “a public body organized and existing under the Housing Laws of Massachusetts which holds itself out to the public and its tenants as conforming to the law and specifically conforming to the State Sanitary Code . . . [and other cited statutes and regulations] requiring it to keep its premises in a safe and sanitary and habitable condition; and that the failure of [the] plaintiff herein ... to lease and maintain the premises *205in such condition is a breach of its implied warrantee [sic] of habitability to defendant and that defendant’s obligation to pay rent is dependent upon plaintiff’s performance of its Warrantee [sic] of Inhabitability and providing defendant with a home according to Code Standards, State and Federal Laws.”
The answer of each tenant also “claims the protection of . . . [G. L. c. 239, § 8A, inserted by St. 1965, c. 888, as amended] which states that a defendant may not be evicted for non-payment of rent where the plaintiff is in violation of the State Sanitary Code and a proper inspection of said premises has been made and the tenant has been paid up in her rent prior to said inspection; [and] [t]hat the defendant has complied with . . . [c. 239, § 8A] and that therefore the plaintiff cannot recover.” As to each tenant the trial judge found that she had failed to give the written notice required by § 8A, that she “would, because of such [Code] violations, withhold all rent thereafter becoming due until the conditions constituting such violations were remedied.” He then properly ruled that § 8A “is not available to the defendant as a defense to this proceeding.” See Rubin v. Prescott, 362 Mass. 281, 287-289.
Having thus failed to qualify for the defence which would otherwise have been available to them under § 8A, the tenants ask this court to give them relief by holding (a) that the landlord impliedly warranted the fitness of their apartments for habitation, (b) that the landlord violated the warranty, and (c) that the landlord’s obligation to comply with the warranty and their obligation to pay their rent are mutually interdependent. Despite the tenants’ use of the words “implied warranty of fitness” it is clear from their answers and requests for rulings, and from the entire record before us, that their defence and request for relief are based entirely on the existence of conditions which they contend constituted violations of the Code. I do not understand their position to be that the landlord owed them a duty to provide *206or maintain for them apartments which exceeded, or included more than, that which is required by the minimum standards of the Code.
The situation before us is that tenants who have admittedly withheld payment of rent for apartments which they continued to occupy despite alleged violations of the Code now take the position that by reason of the violations the landlord may neither evict them nor recover any rent from them. The opinion of the court holds that the tenants are subject to eviction because of their failure to pay rent, but that their liability for unpaid rent is limited to the reasonable value, if any, of their apartments, considering the alleged violations of the Code. That holding is sufficient to dispose of the only issues raised in these cases, and to that extent I concur with the opinion.
However, the opinion of the court purports to declare a set of rules which go beyond the facts, issues and necessities of these cases. While I recognize that it is proper to discuss some of the far reaching implications and probable consequences of the holding, a clear line should be drawn betwen the holding and the additional discussion lest the latter be assumed, under the doctrine of stare decisis, to be a present commitment on questions not now being decided. Swan v. Superior Court, 222 Mass. 542, 545. Erickson v. Ames, 264 Mass. 436, 444. Old Colony Trust Co. v. Commissioner of Corps. & Taxn. 346 Mass. 667, 674-676. Additionally, I am unable to agree with some statements in the opinion which I think go beyond the holding necessary for the decision of these cases. Those statements from which I dissent will be discussed in a later portion of this opinion.
I agree with the majority of the court that, at least as to dwelling units, the time has come to reconsider the rule so long imbedded in our law of landlord and tenant that “[t]here is no implied agreement, apart from fraud, that the demised premises are or will continue to be fit for occupancy or safe and in good repair [and that] [t]he tenant takes the premises as he finds them and there is *207no obligation on the landlord to make repairs.” Fiorntino v. Mason, 233 Mass. 451, 452. Foster v. Peyser, 9 Cush. 242, 246-247. Cowen v. Sunderland, 145 Mass. 363, 364. Kearines v. Cullen, 183 Mass. 298, 300. Walsh v. Schmidt, 206 Mass. 405, 406. Mills v. Swanton, 222 Mass. 557, 559. Conahan v. Fisher, 233 Mass. 234, 237-238. Bergeron v. Forest, 233 Mass. 392, 398. Borden v. Hirsh, 249 Mass. 205, 210. Bolieau v. Traiser, 253 Mass. 346, 348. Shepard v. Worcester County Inst. for Sav. 304 Mass. 220, 221. Hart v. Windsor, 12 M. & W. 68.
The record of the past century reveals a striking contrast between the judiciary and the Legislature in their respective attitudes toward the need to insure to occupants of dwelling units a reasonable opportunity to obtain at least the minimum measure of shelter, safety (including protection from exposure to health hazards), facilities and services basic to the changing exigencies of a developing society. As early as 1871 the Legislature enacted a comprehensive set of regulations (St. 1871, c. 280) governing all types of buildings, particularly dwelling houses, tenements and lodging houses, in the city of Boston. In 1872 it enacted a statute (St. 1872, c. 243) which authorized other cities and towns to “prescribe rules and regulations for the inspection, materials, construction, alteration and safe use of buildings and structures.” These were but the forerunners of a continuing series of statutes prescribing, or permitting municipalities to prescribe, detailed minimum physical standards and requirements for dwelling units and other buildings and providing criminal penalties for violations. Many of these statutes, in their amended form, ultimately became part of G. L. cc. 143, 144 and 145.
Since 1960 dwelling units have been subject to the State Sanitary Code adopted by the Massachusetts Department of Public Health under authority delegated to it by the Legislature (G. L. c. Ill, § 5, later repealed, and § 127A). The Code, which has the force of law and applies throughout the Commonwealth, fixes mini*208mum standards of fitness of structures for human habitation. It does so in great detail and to an extent never before incorporated in any statute. It expressly provides that “[n]o person shall ... let to another for occupancy any dwelling, dwelling unit, or rooming unit, for the purpose of living, sleeping, cooking, or eating therein, which does not comply” with its provisions, and further provides a criminal penalty for violation of its provisions. It expressly places the burden on the owner to comply with the prescribed minimum physical standards for rented dwelling units. The Code is not solely penal in nature. By G. L. c. Ill, § 127C, as amended by St. 1969, c. 242, and § 127H, as amended by St. 1972, c. 201, a tenant may file a petition in the District or Superior Court to enforce compliance with the Code by the landlord; and by § 127K, inserted by St. 1968, c. 404, § 2, any agreement by the tenant to waive that right is declared to be against public policy and void. Both the enabling statute (G. L. c. Ill, § 127A) and the Code (Art. I, Reg. 2.1) recognize the authority of municipalities to adopt local regulations containing requirements stricter than those contained in the Code. No such local regulations are involved in the cases before us.
A recent development indicating still further legislative authorization of regulation of buildings and structures, not limited to dwelling units, is found in G. L. c. 23B, §§16 through 23, inserted by St. 1972, c. 802, § 1, which has as an ultimate goal the adoption and enforcement of a uniform State building code which shall take effect throughout the Commonwealth on January 1, 1975. (St. 1972, c. 802, § 67.)
During the past century this court has continued to construe agreements for the rental of dwelling units according to historic and traditional common law concepts of property law, including the firmly imbedded rule of caveat emptor. It has continued to do so even in the face of statutes such as St. 1907, c. 550, § 127, applicable only in Boston, providing that: “Every structure and part thereof and appurtenant thereto shall be main*209tained in such repair as not to be dangerous. The owner shall be responsible for the maintenance of all buildings and structures. The lessee under a recorded lease shall be deemed the owner under the provisions of this act.” In commenting on this statute in Palmigiani v. D’Argenio, 234 Mass. 434, 436, involving a tenancy at will, this court said: “It is plain that there is no express repeal of the rule at common law relating to contracts creating a tenancy at will, under which no liability is imposed on the landowner for obvious defects, or for want of repair, unless he contracts to keep the premises in a safe condition, and to make suitable repairs during the tenancy. . . . The statute not having attempted to regulate or modify the.contractual relations of the parties it should not be broadened, or a construction adopted by implication which would materially limit the rights of parties to enter into such lawful contracts as they please. It would be going far to say that the Legislature intended to do away with fundamental law.” Speaking of the same statute in Vallen v. Cullen, 238 Mass. 145, 147-148, the court said that it “does not in express terms attempt to modify or affect in any way the relations between landlord and tenant as they exist at common law.” For other cases to the same effect and involving the same statute, though different sections thereof, see Borden v. Hirsh, 249 Mass. 205, 210, Wynn v. Sullivan, 294 Mass. 562, 566, and Heilbronner v. Scahill, 303 Mass. 336, 337-338. To the same effect, but involving other statutes, see Garland v. Stetson, 292 Mass. 95,100-103, involving regulations on elevators under authority of G. L. c. 143, §§ 68-69, and Richmond v. Warren Inst. for Sav. 307 Mass. 483, 485, involving G. L. c. 143, § 23, prohibiting the obstruction of stairways.2
*210The net result of this court’s interpretation of these statutes was (a) that the owner of a dwelling unit which did not comply with the prescribed minimum standards could be prosecuted criminally, (b) that if he rented the unit without correcting the violations the statutes did not per se impose an obligation on him for the benefit of the tenant to correct the violations, and (c) that unless there was an express agreement to the contrary, the tenant took the unit subject to all existing violations and if he wanted them corrected the burden of doing so was on him. That result, when coupled with the operation of the further rule that even if the landlord expressly agreed to make repairs such an agreement was independent from the tenant’s obligation to pay the rent, constitutes a formidable judicial roadblock preventing the tenant from having any practical means of obtaining the benefits which the statutes were designed and intended to give him.
The opinion of the court in the present cases does not discuss or otherwise deal with the rule quoted above from Palmigiani v. D’Argento, 234 Mass. 434, 436. As the first step in the removal of the roadblock discussed above I would reverse that rule and hold instead (a) that the various statutes, ordinances, by-laws, rules, regulations and codes prescribing minimum standards for dwelling units impose on the landlord, for the benefit of his tenants, an obligation to comply with those minimum standards, and (b) that by renting such a unit the landlord impliedly agrees with his tentant (i) that at the time of the renting the unit complies with those standards and (ii) that during the term of the renting he will do whatever such legal provisions require him to do for compliance with such standards. Such a holding is necessary to insure that tenants shall enjoy the rights which these various legal provisions have created for their benefit. Other courts have made similar holdings.
The 1922 case of Altz v. Leiberson, 233 N. Y. 16, 18, involved a comprehensive statute, commonly called the *211“Tenement House Law,” which provided in part: “Every tenement house and all the parts thereof shall be kept in good repair.” The plaintiff was injured by the falling of a ceiling in her apartment. The landlord argued that the statute had not changed the common law under which no duty rested on him to repair the rooms demised. In rejecting that argument, Judge Cardozo said at pp. 18-19: “The command of the statute, directed, as it plainly is, against the owner . . . has thus changed the ancient rule. . . . We may be sure that the framers of this statute, when regulating tenement life, had uppermost in thought the care of those who are unable to care for themselves. The legislature must have known that unless repairs in the rooms of the poor were made by the landlord, they would not be made by any one. The duty imposed became commensurate with the need. The right to seek redress is not limited to the city or its officers” (emphasis supplied). The same language was quoted with approval in Javins v. First Natl. Realty Corp. 428 F. 2d 1071, 1080-1081 (D. C. Cir.), where the court said further that the comprehensive set of housing regulations then in effect “creates privately enforceable duties,” and that “by signing the lease the landlord has undertaken a continuing obligation to the tenant to maintain the premises in accordance with all applicable law.” To the same effect see also Whetzel v. Jess Fisher Management Co. 282 F. 2d 943, 950 (D. C. Cir.), and Kanelos v. Kettler, 406 F. 2d 951, 953 (D. C. Cir.).
In the case of Schiro v. W. E. Gould & Co. 18 Ill. 2d 538, the defendants agreed in writing to erect a dwelling on a lot and then convey it to the plaintiff. The agreement was silent as to sewer and water connections. The city building code required the new house to be connected directly to the city sewer and water systems. The defendants connected it to the sewer and water installations of a house on the adjoining lot. The court said, at pp. 544-545: “It is settled law that all contracts for the purchase and sale of realty are presumed *212to have been executed in the light of existing law, and with reference to the applicable legal principles. . . . Thus, the law existing at the time and place of the making of the contract is deemed a part of the contract, as though expressly referred to or incorporated in it. . . . Consequently, the courts, in construing the existing law as part of the express contract, are not reading into the contract provisions different from those expressed and intended by the parties . . . but are merely construing the contract in accordance with the intent of the parties. . . . Applying this established law to the instant case, it is evident that the contract ... included, as an integral part, the relevant provisions of the city code in existence at the time the contract was executed. The requirements of that code were, therefore, as much a part of the contract as if they had been enumerated by the parties.”
The above statement was quoted with approval in Jack Spring, Inc. v. Little, 50 Ill. 2d 351, 361-362, where the court held that in the rental of certain dwellings the landlord impliedly warrants that the premises comply with the city’s building code. A dissenting opinion in the Jack Spring case contains the following observations, at pp. 374-375: “The housing code of the city of Chicago . . . imposes certain obligations upon an owner of dwelling units to repair and maintain the same. In keeping with this expression of legislative intent I would imply in every lease covering residential property within the purview of the housing code ... an implied covenant by the lessor to repair the premises in keeping with the requirements of the housing code. . . . Possibly my preference for the use of the term ‘implied covenant’ instead of ‘implied warranty of habitability’ as used by the majority is only a matter of semantics. However, I prefer the covenant designation because it definitely indicates an obligation or an undertaking by the lessor as part of the lease' itself. The term ‘warranty,’ however, generally carries with it the idea of a holding out or a representation thereby inducing another to act. *213(8 Williston on Contracts, 3d ed. (Jaeger), sec. 970.) Although the concept of a representation or an inducement may be appropriate in cases where the lessee has been justified in abandoning the premises because of its original condition, as in Lemle [Lemle v. Breeden, 51 Hawaii 426] and Pines [Pines v. Perssion, 14 Wis. 2d 590], to apply the term to a simple situation concerning repairs seems to be needlessly indulging in what may possibly be a confusing fiction.”
The second step required for the removal of the roadblock is the reversal of the present common law rule that the obligation of the tenant to pay rent and the obligation, if any, of the landlord to repair or maintain the rented premises are independent, and the substitution therefor of a new rule that such obligations are substantially mutually interdependent. The opinion of the court accomplishes this. However, the second step without the first will apply only to those very few cases in which the landlord has expressly agreed to repair or maintain the rented premises, and it will not benefit the present tenants, and the many others similarly situated, whose landlords have not expressly agreed to do so and against whom the present law implies no obligation to do so. The present tenants and others similarly situated can benefit only if this court also takes the first step described above, thereby reversing the present common law rule that “[t]here is no implied agreement, apart from fraud, that the demised premises are or will continue to be fit for occupancy or safe and in good repair [and] the tenant takes the premises as he finds them and there is no obligation on the landlord to make repairs.” Fiorntino v. Mason, 233 Mass. 451, 452.
The point at which I dissent from the opinion of the court is where it attempts to accomplish the first step by resort to an implied warranty of the fitness of the rented dwelling unit instead of by the implication of an agreement that the unit will comply with the minimum standards required therefor by law. The court states the new rule to be that the landlord renting a dwelling *214unit impliedly warrants to the tenant “that the premises are fit for human occupation . . . [which] ‘. . . means that at the inception of the rental there are no latent [or patent] defects in facilities vital to the use of the premises for residential purposes and that these essential facilities will remain during the entire term in a condition which makes the property livable.’ ” The court makes no attempt to define what is required to make a dwelling unit “fit for human occupation,” or to make “the property livable,” or to define what may constitute a material breach of the new implied warranty. It suggests that broad discretion be left to trial courts to decide these questions on a continuing case by case basis.
I dissent from the statement of such a broad and sweeping new rule for the reason, in part, that it would be sufficient for the decision of these cases to hold that the landlord, in renting the apartments to the tenants, impliedly agreed that the apartments would comply with the several requirements of the Code which the tenants allege were violated, and that if the tenants sustain their burden of proof of such violations their liability for the unpaid rent may be reduced to the fair value of their use and occupancy of the apartments in their deficient condition.
I dissent from the stated new rule for the further reason that the basis and scope of the landlord’s obligation thereunder are related to the court’s implication of a new and otherwise undefined warranty of fitness of the rented premises for human habitation. The present situation in this Commonwealth is not one of a void in the law with reference to what is required of dwelling units to constitute “fitness for human habitation” (G. L. c. Ill, § 127A). As already noted in this opinion, we have had considerable legislative and administrative attention and action on this subject. We have the numerous statutes passed by the Legislature. Municipalities have been authorized to enact ordinances or by-laws and to adopt rules and regulations thereon. *215The Department of Public Health, by authority expressly delegated to it by the Legislature, has adopted the State Sanitary Code having the force and effect of law throughout the State. In short, the field has been occupied, and the void, if any, has been filled. It remains for the courts only to accommodate their rules of common law to enable tenants to enforce against landlords these mandatory, detailed, precise and easily understandable minimum standards of fitness of dwelling units for human occupation, rather than to create a new implied and undefined obligation which will require years of litigation to develop and define.
Since it is clear that mandatory minimum standards for housing units as prescribed by statutes, ordinances, rules, regulations or codes having the force and effect of law cannot be waived or otherwise undercut by agreement of the parties to a tenancy, it appears that the opinion contemplates that the new implied warranty may require even higher standards to satisfy its requirement of fitness “for human occupation.” Thus these identical words would have one meaning under applicable statutes, ordinances, rules, regulations or codes, and they might have a different meaning under the proposed implied warranty. The court’s opinion itself says, in footnote 16, that “the protection afforded by the implied warranty of habitability does not necessarily coincide with the Code’s requirements.” This deliberate creation of a presently undefined, indeterminable and uncharted area of potential rights and liabilities of landlords and tenants can serve only to vex them and to produce litigation otherwise avoidable.
In the past dozen years we have witnessed a growing number of decisions and other legal writings which seemingly compete in their use of rhetoric and eloquence to inveigh against the “old common law” rules relating to landlords and tenants and argue that the rules which were developed for use in a “rural agrarian society” now serve only to victimize and shackle the apartment dwellers of our modern “urban industrial society.” They *216make frequent use of the words “implied warranty of habitability” and in most instances they make no attempt to explain or define what is included in such a warranty. In its present opinion the court seems to rely considerably on these decisions and writings, and the opinion quotes from some of them at length. Although some of the decisions on which the court seems to place its greatest reliance include in their discussions general language about the implication of a warranty of habitability, it is clear from the express language of their holdings that they imply a warranty of habitability which is limited to the minimum standards prescribed by applicable statutes, ordinances, by-laws, codes, rules and regulations.
The opinion of the court appears to rely principally on the decision in Javins v. First Natl. Realty Corp. 428 F. 2d 1071 (D. C. Cir.), and it quotes at length from what I believe to be dictum in that case. The facts of that case were very much like those of the present cases. The holding of that case is stated near the beginning of the opinion at pp. 1072-1073 to be that “We . . . hold that a warranty of habitability, measured by the standards set out in the Housing Regulations for the District of Columbia, is implied by operation of law into leases of urban dwelling units covered by those Regulations and that breach of this warranty gives rise to the usual remedies for breach of contract” (emphasis supplied), and the holding is repeated near the end of the opinion at p. 1082 in the following language: “We therefore hold that the Housing Regulations imply a warranty of habitability, measured by the standards which they set out, into leases of all housing that they cover” (emphasis supplied).
The opinion of the court also cites the 1972 case of Jack Spring, Inc. v. Little, 50 Ill. 2d 351, as standing for the rejection of the common law rule and for implying a warranty of habitability. However, the holding in that case at p. 366 was: “We find the reasoning in Javins persuasive and we hold that included in the contracts, *217both oral and written, governing the tenancies of the defendants in the multiple unit dwellings occupied by them, is an implied warranty of habitability which is fulfilled by substantial compliance with the pertinent provisions of the Chicago building code” (emphasis supplied). In the later case of Gillette v. Anderson, 4 Ill. App. 3d 838, 841-842, the court in applying the rule of the Jack Spring case said: “[T]he oral lease . . . included an implied warranty of habitability and the standards of that warranty would be those standards set forth in those sections of the ordinances of Waukegan related to housing” (emphasis supplied).
The case of Hinson v. Delis, 26 Cal. App. 3d 62, 71, cited in the court’s opinion, holds only that a tenant proving that the dwelling unit which she occupied was in violation of the applicable code was entitled to a declaration that she “is obliged to make rental payments only after the defendant [landlord] complies with his duty to substantially obey the housing codes and make the premises habitable.”
In the 1972 case of Mease v. Fox, 200 N. W. 2d 791, 796 (Iowa), the court said that “the implied warranty we perceive in the lease situation is a representation there neither is nor shall be during the term a violation of applicable housing law, ordinance or regulation which shall render the premises unsafe, or unsanitary and unfit for living therein.”
The opinion of the court also cites and quotes from the decisions in Pines v. Perssion, 14 Wis. 2d 590, and Kline v. Burns, 111 N. H. 87. Although the court in each of these cases said it was implying a warranty of habitability of the dwelling unit in question, it should be noted that in each case the facts held to constitute a breach of the warranty consisted of violations of the building or housing codes. The relationship between the court’s decision in the Pines case and legislative and administrative housing standards is obvious from the following language at pp. 595-596 of the decision: “Legislation and administrative rules, such as the safe-place statute, *218building codes, and health regulations, all impose certain duties on a property owner with respect to the condition of his premises. Thus, the legislature has made a policy judgment — that it is socially (and politically) desirable to impose these duties on a property owner — which has rendered the old common-law rule obsolete. To follow the old rule of no implied warranty of habitability in leases would, in our opinion, be inconsistent with the current legislative policy concerning housing standards.” For other cases to the same effect, see Marini v. Ireland, 56 N. J. 130, and Lund v. MacArthur, 51 Hawaii 473. All four of these cases could have been decided in favor of the tenants on the basis of the landlord’s violation of applicable building or housing codes, as could the cases now before us, without imposing a broader warranty. See Schoshinski, Remedies of the Indigent Tenant: Proposal for Change, 54 Georgetown L. J. 519, 523, for discussion of “Implied Warranty of Habitability Based on Housing Regulations.”
If it were now necessary or appropriate to indicate by dictum what the ultimate scope of our new rule might be, beyond the necessities of the present cases, I would state it to be (a) that by renting a dwelling unit a landlord impliedly agrees, with respect to the minimum standards prescribed by any applicable laws, regulations or codes (such as the State Sanitary Code) having the force and effect of law, (i) that the rented unit complies with such standards at the time of the renting, and (ii) that he will do whatever such laws, regulations or codes require a landlord to do for compliance with such standards during the term of the renting, (b) that the landlord’s obligation to provide and maintain premises which comply with those minimum standards and the tenant’s obligation to pay the agreed rent are substantially mutually interdependent, (c) that if the tenant shall fail to pay the agreed rent when due the landlord may evict him notwithstanding the tenant’s claim or allegation that the landlord has failed to comply with the prescribed *219minimum standards,3 and (d) that if the landlord fails in any material respect to comply with the prescribed minimum standards the tenant may (i) elect to remain in possession, paying the full amount of the agreed rent under protest based on such violation, and then bring an action to recover the excess of the amount paid over and above the fair value of the occupancy of the deficient premises, or (ii) vacate the premises, thereby terminating the tenancy, and as to rent unpaid for any period of occupancy the landlord may recover the fair value of such occupancy of the deficient premises. If such a rule were adopted, it would, of course, require further attention to such matters as notice to the landlord of Code violations arising after the letting, the time permitted the landlord to correct the violations, and the nature, extent or duration of a violation necessary to entitle the tenant to vacate or exercise other remedies available to him by reason of the violation.
Admittedly the rule suggested above does not cover the situation constituting a “constructive eviction” of a tenant which is discussed in the court’s opinion, but that is because the facts of the present cases do not involve such a situation. There is nothing to suggest that our courts which have heretofore given relief to a tenant who is the victim of a “constructive eviction” will not continue to do so in an appropriate case. Historically the orderly development and evolution of the common law has been accomplished primarily by the judicial decision of issues *220actually in controversy, with due consideration for the consequences of the decision, but without trying to anticipate and simultaneously decide all possible related questions which might arise later.
Ruth Briggs, the tenant in the companion case, vacated her apartment after trial of her case in the Superior Court. Thus the only issue in her case is her liability for the unpaid rent.
Despite these repeated statements that such statutes are penal in nature and that they do not “modify or affect in any way the relations between landlord and tenant as they exist at common law,” this court has nevertheless said in many cases, including most of those cited above, that in actions against the landlord for injuries sustained on the rented premises the violation of such a statute may, in certain circumstances, be evidence of the landlord’s negligence.
This obvious limitation on the total interdependence of the landlord’s obligation to repair and maintain the rented premises and the tenant’s obligaton to pay rent also appears in the opinion of the court. It is a reasonable limitation in view of the fact that a tenant, if he wishes to remain in possession and either withhold payment of rent or pay rent into court, may do so to the extent permitted by G. L. c. 111, § 127F, inserted by St. 1965, c. 898, § 3, § 127H, as amended by St. 1972, c. 201, and § 127L, inserted by St. 1972, c. 799; or by G. L. c. 239, § 8A, as amended by St. 1969, c. 355. As a matter of policy it is not desirable that a tenant who does not avail himself of these statutory remedies be permitted to continue to occupy the landlord’s premises indefinitely, without paying the rent to the landlord or depositing it in court when due, while prolonged legal proceedings to establish the rights and liabilities of the parties await final disposition by the courts.