Here is a cautionary tale that has both intrinsic amusement value and broader implications in view of the subject of contract review. In short, a Massachusetts court has definitively ruled that a burrito is not a sandwich. (http://www.boston.com/business/globe/articles/2006/11/10/arguments_spread_thick/).
An excerpt from the Boston Globe story:
A burrito is not a sandwich.

That's the culinary ruling of a Worcester judge, ending, for now, a food fight between Panera Bread Co. and Qdoba Mexican Grill.

In issuing his decision, which blocks Panera Bread's attempts to keep the burrito maker off its turf, Worcester Superior Court Judge Jeffrey A. Locke relied on testimony from Cambridge chef Chris Schlesinger and a former high-ranking USDA official, not to mention the Webster's Third New International Dictionary.

The burrito brouhaha began when Panera, one of the country's biggest bakery cafes, argued that owners of the White City Shopping Center in Shrewsbury violated a 2001 lease agreement that restricted the mall from renting to another sandwich shop. When the center signed a lease this year with Qdoba, Panera balked, saying the Mexican chain's burritos violate its sandwich exclusivity clause.

Not so, Qdoba countered, submitting affidavits from high-profile experts in the restaurant and food industry. "I know of no chef or culinary historian who would call a burrito a sandwich," Schlesinger said in his affidavit. "Indeed, the notion would be absurd to any credible chef or culinary historian."

In his ruling, Locke cited Webster's definition of a sandwich and explained that the difference comes down to two slices of bread versus one tortilla: "A 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," he wrote.

Of course, this makes me wonder if, for example, an open-faced sandwich (one slice of bread) is a sandwich, but never mind. It's a be-careful-what-you-ask-for kind of story. The Panera people clearly intended for its exclusivity rights to extend to the type of store Qdoba represents, but apparently made the mistake of not defining terms to the extent required to avoid evisceration of the contract by a nit-picking judge.

Sometimes even lawyers are incompetent when it comes to this sort of thing, but that doesn't mean that you shouldn't consult one when the nature of the contract is such that the risks attendant on being overly turgid and verbose are significantly outweighed by potential risks.

Here is a cautionary tale that has both intrinsic amusement value and broader implications in view of the subject of contract review. In short, a Massachusetts court has definitively ruled that a burrito is not a sandwich. (http://www.boston.com/business/globe/articles/2006/11/10/arguments_spread_thick/).
An excerpt from the Boston Globe story:


Of course, this makes me wonder if, for example, an open-faced sandwich (one slice of bread) is a sandwich, but never mind. It's a be-careful-what-you-ask-for kind of story. The Panera people clearly intended for its exclusivity rights to extend to the type of store Qdoba represents, but apparently made the mistake of not defining terms to the extent required to avoid evisceration of the contract by a nit-picking judge.

Sometimes even lawyers are incompetent when it comes to this sort of thing, but that doesn't mean that you shouldn't consult one when the nature of the contract is such that the risks attendant on being overly turgid and verbose are significantly outweighed by potential risks.

and people say our society too litigious.

I'll have to go back and watch the Good Eats episode on pocket food and see if Alton calls burritos, samosas, empanadas, pasties, etc. sandwiches.

They (my favorite radio station) did a segment on this yesterday. My Mexican friends all say that a burrito basically their version of a sandwich. They tuck them into their lunch bags just as I might toss in a "sandwich" of bread and meat.

But, that being said, I think that I am glad the court decided the way they did. I have an aversion to companies that will not compete on a level playing field. And, I do like Panera. I just think that if your product is good, it can stand up to having a different type (nationality) food being sold in the same mall. I personally will go outside the mall to find the (perhaps) same chain most of the time. Mall food doesn't seem to have the same quality, is that because of the 1) quantities sold, 2) logistics of the "rushes" and keeping food hot and fresh, or 3) attitude of emplyees operating the mall outlets (training, lack of larger crews to provide social interaction - apathy of low paid personnel working with only one or two other apathetic low paid personnel - lack of team values) 4) the less than optimal dining experience found in most food courts?

So, yes, if you want to shut down the competition, you better word your contract to eliminate all doubt. In this case, I think the wording was intentionally vague hoping that it could be twisted to fit the need. Oops, that didn't work, did it?

But, that being said, I think that I am glad the court decided the way they did. I have an aversion to companies that will not compete on a level playing field. And, I do like Panera.

Well, like I said, you have to be careful what you ask for. This dispute has nothing to do with whether or not the playing field is level. My suspicion is that if Panera had been more specific, they would have prevailed, and rightly so. This also has nothing to do with Qdoba's "rights." The dispute was between Panera and the lessor, and had to do with the lessor's rights in leasing space to Qdoba. So long as contract terms don't involve illegal activities such as racial discrimination, the terms are defined and agreed to by the parties. This wasn't a frivolous lawsuit, either. A key term was defined (or left undefined) such that a legititmate question of denotation was raised.

Just speculation, but I'd bet a dollar that the mall owner wanted to collect some more rent for an empty space. He carefully read the contract with Panera and found a legal loophole to allow him to rent to another eatery. Legal, yes; ethical, maybe. IF there is enough traffic through the mall to adequately fund both stores. I suspect that Panera asked for the exclusion initially as a risk abatement for opening a sandwich shop in mall with questionable traffic forecasts as opposed to their request being an anti-competition stance. They don't seem to have a problem coming late to the party and setting up shop in the midst of other "eateries" in the strip malls around here.