Based on what you have read and learned about contract interpretation do you agree or disagree with the court's decision? 1-2 Pargraphs

DEPARTMENT OFLAWZICKLINSCHOOL OFBUSINESSBARUCHCOLLEGE(CUNY)

A Basic Case of Contract Interpretation:Is a Burrito a Sandwich? An article onWhite City Shopping Ctr., LP v. PR Rests., LLC,No. 2006196313, 2006 WL 3292641

(Mass. Super. Ct. Oct. 31, 2006), summarizes the key facts of the case as follows:

In March 2001, Panera--a popular chain of caf-style restaurants and bakeries-- signed a 10 year lease with White City Shopping Center to occupy retail space in the White City Shopping Center in Shrewsbury, Massachusetts. The lease contained an exclusive use clause preventing the White City Shopping Centerfrom leasing space in the same mall to any bakery or restaurant "reasonablyexpected to have annual sales of sandwiches greater than ten percent (10 %) ofits total sales . . ." The original lease allowed for a number of exemptions to theexclusive use provision--for example, a Jewish-style delicatessen was exempt from the provision, and thus was free to serve sandwiches. For five years the parties' dealings apparently were amicable, but before the original lease had even expired they decided to renegotiate its terms.

The facts are silent as to why the parties determined to renegotiate the lease early, but what becomes patently clear is that Panera sought greater protection from competing restaurants, and the shopping center was willing to provide that for a price. During the new round of negotiations, the parties agreed to expand the exclusivity clause to cover more restaurants--the Jewish-style delicatessen lost its exemption, as did near-Eastern restaurants that served gyros (a sandwich utilizing pita bread). But less than one year after signing the amended lease with Panera, the White City Shopping Center entered into a lease agreement with a new client--Qdoba Mexican Grill. Qdoba's menu features salads, tacos, quesadillas, and of course burritos. Upon learning of the new lease, Panera demanded assurance from the shopping center that Qdoba would not become its neighbor. The shopping center's owner wassaid to be "deliberately evasive"and refused to provide the requested assurance; rather, it beat Panera to the courthouse seeking a declaratory judgment that it was not in violation of its contractual obligation. Thus began the now infamous Burrito Brouhaha.

Despite the volley of claims, counterclaims, affidavits, and charges, the issuebefore the court was deceptively simple: Does the term "sandwiches" as itappears in the Panera lease include burritos?

Marjorie Florestal,Is a Burrito a Sandwich? Exploring Race, Class, and Culture in Contracts, 14 MICH. J. RACE& L. 1, 10-12 (2008) (footnotes omitted).

DEPARTMENT OFLAWZICKLINSCHOOL OFBUSINESSBARUCHCOLLEGE(CUNY)

Is a Burrito a Sandwich?How the Court Ruled

The interpretation of a contract is question of law for the court. Sarvis v. Cooper, 40 Mass. App. Ct. 471, 475, 665 N.E.2d 119 (1996). A contract is construed to be given reasonableeffect to each of its provisions. Id. "The object of the court is to construe the contract as awhole in a reasonable and practical way, consistent with its language, background andpurpose."USM Corp. v. Arthur D. Little Systems, Inc., 28 Mass. App. Ct. 108, 166, 546 N.E.2d 888 (1989). The starting point must be the actual words chosen by the parties to express their agreement. Id. If the words of the contract are plain and free from ambiguity, they must be construed in accordance with their ordinary and usual sense. See Ober v. National Casualty Co., 318 Mass. 27, 39, 60 N.E.2d 90 (1945).

Given that the term "sandwiches" is not ambiguous and the Lease does not provide adefinition of it, this court applies the ordinary meaning of the word. The New Webster ThirdInternational Dictionary describes a "sandwich" as "two thin pieces of bread, usually buttered,with a thin layer (as of meat, cheese, or savory mixture) spread between them." Merriam- Webster, 2002. Under this definition and as dictated by common sense, this court finds thatthe term "sandwich" is not commonly understood to include burritos, tacos, and quesadillas,which are typically made with a single tortilla and stuffed with a choice filling of meat, rice, and beans. As such, there is no viable legal basis for barring White City from leasing to Chair 5.Further, PR has not proffered any evidence that the parties intended the term "sandwiches"to include burritos, tacos, and quesadillas. As the drafter of the exclusivity clause, PR did notinclude a definition of "sandwiches" in the lease nor communicate clearly to White City duringlease negotiations that it intended to treat burritos, tacos, quesadillas, and sandwiches thesame. Another factor weighing against PR's favor is that it was aware that Mexican-style restaurants near the Shopping Center existed which sold burritos, tacos, and quesadillas prior to the execution of the Lease yet, PR made no attempt to define, discuss, and clarify theparties' understanding of the term "sandwiches." Accordingly, based on the record before thecourt, PR has not shown a likelihood of success on the merits.

White City Shopping Ctr., LP v. PR Rests., LLC,No. 2006196313, 2006 WL 3292641, at *3 (Mass. Super. Ct. Oct. 31, 2006) (footnotes omitted).Chair 5 is "a franchisee of Qdoba, a Mexican-style restaurantchain that sells burritos, quesadillas, and tacos."Id. at *1. PR Restaurants operates the Panera Bread restaurant that is at issue in this case. Id.

Professor's Note:

A currentonline version of Webster's Dictionary defines a sandwichalternativelyas "two or more slices of bread or a split roll having a filling in between," and "one slice of bread covered with food." The online version of the Oxford English Dictionary (which bills itself as "the definitive record of the English language") defines a sandwich as follows: "An article of food for a light meal or snack, composed of two thin slices of bread, usu. buttered, with a savoury (orig.spec.meat, esp. beef or ham) or other filling."