In 1960, federal Judge Henry Friendly wrote himself into the canon of contract law in an opinion that began with the near-immortal words, “The issue is, what is chicken?” Of course, the question in the case wasn’t really “what is chicken?,” but the phrase has hooked generations of law students and their teachers.
Comes now the bakery chain known as Panera and the 21st century version of Judge Friendly’s question: What is a sandwich?
Panera leases space in the White City Shopping Center on Route 9 in Shrewsbury, Mass. The landlord covenanted not to enter into a lease with another tenant doing any significant business in “sandwiches.” Alas, the term “sandwiches” was not defined in the agreement. When the landlord negotiated a lease with Qdoba, which sells burritos, tacos, and quesadillas, Panera complained and, not satisfied with the landlord’s response, tried to obtain a preliminary injunction to prevent the Qdoba from opening.
The world now knows the answer to a question that has bedeviled us for decades: A burrito is not a sandwich. The Worcester County Superior Court, in an order signed by Judge Jeffrey Locke, denied the motion. The term “sandwich” is not ambiguous, Judge Locke ruled, and the lease is therefore governed by its ordinary (dictionary) meaning, which requires two pieces of bread. Panera, as the proponent of a broader meaning for the term, bore the burden of drafting the original lease accordingly. Having failed to do so (and in the opinion of the court, being fairly charged with knowledge that Mexican restaurants were operating in the viciting of the White City Shopping Center), Panera cannot complain at this late date.
Judge Friendly no doubt would be proud. But I’m left to wonder . . . is a cheesesteak a sandwich? Is a Primanti’s a sandwich (fries in the middle an ‘at)? What about the Danish smorrebrod? Is a burrito a sandwich in Mexico? Has Judge Locke inadvertently created an problem with US compliance with WTO obligations?
All of the following are in pdf format.
- The order denying the motion.
- Panera’s brief in support of the motion.
- Expert affidavit (Kerry Byrne) to the effect that a burrito is not a sandwich.
- Expert affidavit (Judith Quick) to the effect that neither a burrito nor a taco is a sandwich.
- Expert affidavit (Christopher Schlesinger) to the effect that a sandwich is of European origin and is typically served cold; a burrito has Mexican roots.