A Massachusetts judge has refused to broadly define “sandwich” to include burritos and allowed the owners of a shopping center to lease space to a Mexican restaurant chain over the objections of a sandwich shop tenant.

Panera Bread, which sells sandwiches, coffee and soup, has a lease with the White City Shopping Center in Shrewsbury that includes a provision barring the landlord from renting to another “bakery or restaurant reasonably expected to have annual sales of sandwiches greater than ten percent of its total sales.”

While the lease does not define “sandwiches,” Panera Bread argued in a breach of contract claim that the exclusivity provision should apply to a franchisee of the Qdoba Mexican Grill chain, which signed a lease with the shopping center in August.

But Worcester Superior Court Judge Jeffrey A. Locke, denying the sandwich shop's motion for a preliminary injunction, said it had failed to “establish as a reasonable interpretation [of the lease] that the Mexican-style food products which Qdoba sells fall within the Lease's restrictions.”

The New Webster Third International Dictionary, Locke noted in his decision, defines a “sandwich” as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them,” and

Under this definition and dictated by common sense, this court finds that the term “sandwich” is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with single tortilla and stuffed with a choice filling of meat, rice, and beans.

Panera Bread cited a U.S. Court of International Trade case that defined taco shells as bread. A flour tortilla similarly qualifies as bread and a food product with bread and a filling is a sandwich, the company insisted.

Locke didn't swallow that argument either. The trade court case, he said, involved the “commercial meaning” of bread, whereas “it is the ordinary meaning that is relevant when interpreting an unambiguous contractual term such as 'sandwiches.'”

By Matthew Heller
11/14/06