Monday, November 13, 2006
Is a Burrito a Sandwich?
H/T: The AALS Contracts List
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» But Is a Wrap a Burrito? from ACSBlog: The Blog of the American Constitution Society
A Panera Bread franchise has lost its bid to exclude a Mexican restaurant from its shopping center. The Panera's contract with the shopping center prohibited the center from renting to another "sandwich" shop, when a Mexican restaurant moved in nearby,... [Read More]
Tracked on Nov 13, 2006 5:32:58 PM
So the chefs claim they are different. But from the functional perspective: they are both hand-held engines of potential deliciousness. No vehicles in the park anyone?
Posted by: Dan Markel | Nov 13, 2006 2:48:12 PM
The issue is, what is a sandwich?
Posted by: Bruce Boyden | Nov 13, 2006 3:18:34 PM
And in determining what a sandwich is we might think about whether we are beholden to 'crystalline' (Frege) or 'fluid' (Wittgenstein) pictures of concepts. In the former, we believe it essential to know the necessary and sufficient conditions for the concept's application, hence our concepts are by nature determinate. Yet, as Michael Lynch reminds us, this traditionalist picture can admit that 'our language is rife with ambiguous, vague, and impreceise applications of concepts.' Failure in application is here due to shortcomings in our thinking or to the fact that the 'real' properties are obscured by our thought. In either case, 'The norms of reason demand that our thought mirror as much as possible the crystalline nature of reality.'
In the fluid, later Wittgensteinian view, concepts are not definitively determinate 'closed circles:' 'Concepts on this view are more like sculpting clay. Unlike crystal, which breaks easily, you can stretch and pull a piece of clay in radically different directions before it tears apart. Concepts are always subject to radical changes in shape.' In this latter picture, we cannot set down once and for all the 'possession and application conditions for concepts,' in which case it's perfectly conceivable that at another place and future time a burrito may count as a sandwich, while the crystalline view tends to suggest that a burrito is a burrito and a sandwich a sandwich, and never the twain shall meet (i.e. overlap or become identical). If concepts are flexible, we have to remain sensitive to their 'possible extension in the face of unforeseen circumstances.' In any case, the search for the essence or common property (or properties) of a 'burrito' or 'sandwich' is futile. The above was famously illustrated by Wittgenstein with the word 'game.' And it is in keeping with Llewellyn's remark that 'All words (that is, linguistic symbols) and rules composed of words continuously change meaning as new conditions emerge.'
In the instant case, tacit cultural knowledge associated with both burrritos and sandwiches comes into play (hence the testimony of the chef and the agricultural official), so it seems two slices of bread cannot be considered equivalent to a tortilla, although in my household, when we run out of bread, whatever was deemed appropriate filling for the sandwich, is now deemed filling fitted for a folded tortilla. Indeed, if this case had been in Santa Barbara, it's easy to imagine a different ruling.
Posted by: Patrick S. O'Donnell | Nov 13, 2006 4:42:36 PM
Despite all the blogging about this de minimis story, I have not seen a single reference to the only interesting legal concept underlying it: the canon of construction that when a contract is ambiguous, it must be construed against the party that drafted it. I certainly hope that was judge's reasoning here.
Posted by: KipEsquire | Nov 13, 2006 5:59:07 PM
Here is a harder question: What if the other business were not a burrito joint but a place that specialized in wraps, like WrapWorks?
One of my fields is statutory interpretation, which is in many ways related to contract interpretation. I'm generally sympathetic with Patrick O'Donnell's thoughts above. Using a dictionary to find the essence of sandwichness is not the best way to solve the case. I would suggest that we should look to the purpose of this provision. It seems to me the idea is that whenever somebody in the mall gets the "Mmm . . . I want a sandwich" feeling, Panera wants the monopoly on that business. As a functional/practical matter, is a burrito a substitute? I don't think so. For me, the "I want a burrito" feeling is different.
And for the WrapWorks scenario? That seems to me like it would defeat the purpose of Panera's sandwich monopoly, as they are pretty much substitutes (again, to me). This despite the fact that a wrap is one tortilla instead of two pieces of bread, which seemed to matter to the judge.
Posted by: Aaron | Nov 13, 2006 7:46:52 PM
Our daughter said tortas are like sandwiches, and that many Mexican restaurants that serve burritos might serve tortas (although being vegetarian, she's never had one, as they don't make veggie tortas), so I suppose tortas are like wraps. For what it's worth, both my wife and daughter agreed with Aaron that imagining or foretasting the burrito and imagining or foretasting the sandwich are two different things and most folks prefer not to confuse the two. When I'm hungry, I don't discriminate: 'No, you choose, I don't care, I'll eat anything,' (provided either can be vegetarian).
Posted by: Patrick S. O'Donnell | Nov 13, 2006 10:07:56 PM
Clearly it was Panera's intent and hope to maintain a sandwich monopoly in the shopping center. If they could have obtained it, no doubt Panera would have gone for a total restaurant monopoly. Traditionally monopolies are not favored. So in a close case like this one, I think the decision was right.
Posted by: Dan Krohn | Nov 15, 2006 12:30:26 PM
My question is whether What is Sandwich depends in any way on What is Golf? Paging Justice Scalia...
Posted by: Paul Gowder | Nov 15, 2006 2:46:28 PM
I like this commentary and I think you would appreciate mine. Check it out: http://sandwichmanifesto.blogspot.com
A burrito is definitely a sandwich. Is a grilled cheese a sandwich? I think so. Then mustn't a quesadilla be a sandwich? I don't see how, without being a racist, one could claim differently.
Posted by: Walt Jocketty | Jan 22, 2007 11:24:33 AM
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