Performance. Zilg is author of DuPont: Behind the Nylon Curtain, a historical account of the DuPont family in America's social, political, and economic affairs. Prentice-Hall, Inc, signed Zilg to a contract to publish the book exclusively. There was no

Question

provision to have Prentice-Hall use its best efforts to promote the book; rather, it was left up to the publisher to use its discretion as to the number of volumes printed and the level of promotion. Prentice-Hall had originally planned a first printing of 15,000 copies and an advertising budget of $15,000 for the book. Later, having had second thoughts about the sales potential of the book, Prentice-Hall decided to do a first printing of only 10,000 copies and to reduce the amount it had allocated for advertising. In all, Prentice-Hall published a total of 13,000 volumes (3,000 beyond the sales volume at which it received the highest royalties), authorized an advertising budget of $5,500, distributed over 600 copies to reviewers, and purchased ads in major newspapers. Zilg later claimed that the reductions in the number of volumes printed and in the advertising budget were evidence that Prentice-Hall had not made a "best effort" to fully promote the book. Prentice-Hall claimed that its reduction came after careful review and was based on sound and valid business decisions. Based on these facts only, discuss whether Prentice-Hall has fulfilled its contractual duty to Zilg.

Answer 1

Performance
The court held in favor of Prentice Hall. Zilg could not show that the decisions of Prentice Hall were other than sound and valid. In fact, the court held that the printing of 13,000 copies, an advertising budget of $5,500, and 600 copies to reviewers did give the book a reasonable chance to catch on with the reading public. The court also held that once Prentice Hall accepted the book, it held the exclusive right to publish it and such a right implies a good faith effort to market the book. The publisher, however, reserved the right to use its discretion, and, absent evidence to the contrary, the publisher was free to rely on its own experience and judgment in marketing the book. Therefore Prentice Hall's actions constituted complete performance of its obligation and discharged the contract.