From Mr Andrew Malcolm
Sir, I thank Mark Le Fanu (18th May) for his sympathy and support, but I do not follow all of his reasoning. My knowledge and experience of the law is limited to this four-year action, but one aspect of it at least has become clear to me: in the last analysis, "the law" of contracts, publishing and otherwise, is made, and only made, by judges making reasoned decisions on individual cases.
The case law relating to publishing contracts consists most importantly of four reported precedents. In three and perhaps all four, the contracts pleaded were oral and unrecorded. In every case the contract was upheld.
In my case, where the negotiation concerned the revision of an already complete text and there was a mass of correspondence and transcript evidence, the absence of a formal, signed Memorandum of Agreement was never an important issue. Throughout the trial, the judge repeatedly made it clear that, in his opinion, OUP had made an "absolute commitment" to publish my book and that his difficulty was in giving an enforceable meaning to the word "publish". That is, he was looking for certainty as to a numerical print run.
The clear implication was that if I had been able to persuade him to rely upon the editor's documented decision to print 2,000, he would have found a complete contract and I would now be a happy man.
Publishers' standard Memoranda of Agreement invariably contain a "subject to their approval of the script" clause, leaving it open to them to state that in their bona fide opinion, a work does not come up to scratch. Worse still, Deputy Judge Lightman has now ruled that such "contracts" are incomplete if they do not specify (minimum) print runs, which they rarely do. OUP's commitment to Making Names suffers from neither of these weaknesses and my fight to enforce its honouring has to go another round, the outcome of which should not be pre-judged.
Understandably, Mr Le Fanu wants to reassure authors labouring in possession of standard Memoranda of Agreement that these are enforceable at law, but I have learnt of numerous instances of their being broken yet uncontested. Can Mr Le Fanu give an example of a reneging publisher ever having been ordered by a court to publish a book "contracted" under a standard Memorandum? He concludes that he finds the legal position of authors undertaking work "worrying". I conclude that if my contract with OUP is found to be unenforceable, such authors do not have a legal position.
Yours sincerely,
Andrew Malcolm
7 Southover Street, Brighton.
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