7th Circuit Court of Appeals Judge Richard Posner has written an essay in the New Republic “discussing” Justice Scalia’s recent book (co-authored with Bryan Garner), “Reading Law: The Interpretation of Legal Texts.” In Judge Posner’s essay, he reminded us of an “old saw,” an unreported 2006 Massachusetts court decision** about the meaning of the words we choose to use in our leases.*** In this particular case, the word is “sandwich.”
A Panera Bread franchisee spent several months negotiating a lease, “partly because of [Panera’s] request to include an exclusivity clause in the lease.” Panera prepared the original text and it was revised three times before the lease was signed. Subject to a number of carve-outs, the core of its disputed language was: [Read more…]
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In prior Ruminations postings we’ve explored the inadequacies of damages and inadequacy of a tenant’s right to terminate its lease as remedies for a landlord’s failure to deliver on a lease’s promise that the tenant will have the exclusive right to sell certain goods or services at the property. Briefly stated, figuring out the quantum of damages that will offset a speculative loss of profits is a fool’s errand; and, terminating a lease is like ending your own life to relieve the pain of a headache. OK, that’s not a good example, but you get the idea. 
Ruminations has been discussing what should happen when a tenant’s exclusive use right is breached. One of the remedies suggested in prior postings, as well in reader’s comments, is the tenant’s right to terminate the lease. That’s a remedy brought up in other contexts as well. So, it seems appropriate to discuss the “lease termination remedy” in a somewhat general way, not just when it come to exclusive use rights. 
This isn’t going to be a very satisfactory posting to those who like certainty.
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