9. Cir. 1984)] Shopping Center In April 1965, Heights Supermar leased 11,514 squ

Question

9. Cir. 1984)] Shopping Center In April 1965, Heights Supermar leased 11,514 square feet of space to A&P; not to the terms of the lease, Berkeley agreed gro- lease any other shopping center space to another auct thei and cery store. On April 16, 1977, A&P; informed Berkeley Ona that it was ceasing operations and subleasing the p effe ises to Drug Fair, a modern drugstore chain that sells foodstuffs. In 1985, Berkeley sought to lease other space in the center to another grocery store, and Drug Fair Ch objected on the grounds of the covenant not to compete. ch Berkeley maintains the covenant only applies when the ch premises Drug Fair occupies are used as a grocery store operation. Who is correct? [Berkeley Dev. Co. v Great Atlantic & Pacific Tea Co., 518 A.2d 790 (N.J. 1986)] 6. Gardner-Denver, the largest manufacturer of ratchet wrenches and their replacement parts in the United States, has a dual pricing system for wrench parts and components. Its blue list had parts that, if pur chased in quantities of five or more, were available for

Explanation / Answer

Berkeley's claim that it should be permitted to allow a supermarket in the shopping center is not a stale claim. Whether a claim is stale is based on whether a party had a reason to assert the claim at an earlier date but has failed to do so. The uncontroverted evidence is that there was no prospective supermarket tenant interested in the shopping center until recently, and no prejudice has been demonstrated by Drug Fair. There has been no showing that the percentage of store space allotted to the sale of food products has changed or increased since the assignment was given to Drug Fair, and it offered no proof that its business would be adversely affected by the introduction of a supermarket in the shopping center. Thus, this situation Drug Fair finds itself in presently with respect to the sale of food is in the very same situation it was in nine years ago when it first obtained the assignment from A & P.Berkeley can grant a tenancy in the shopping center to a supermarket

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