Specific Performance: Contracts of Personal Service

• Author: Jeffrey Berryman
• Profession: Professor of Law. Faculty of Law University of Windsor
• Pages: 271-284

CHAPTER

14

SPECIFIC

PERFORMANCE:

CONTRACTS

OF

PERSONAL

SERVICE

A.

INTRODUCTION

The

enforcement

of

contracts

of

personal service raises particular con-

cerns

for

courts.

The

contract itself

is

unlike others

in

that

it is

heavily

imbued with complex social

and

political overtones,

as for

most people

their livelihood

is a

central part

of

their well-being.

As

well, employ-

ment

law has

undergone dramatic legislative change,

often

as a

result

of

substantive principles

and

judicial practices being

out of

step with

contemporary conditions

and

attitudes. Legislation creating specialty

administrative tribunals

for

both unionized

and

non-unionized work-

ers has

removed

from

courts much jurisdiction over employment con-

tracts.

It has

also transformed

the

issues, which

are no

longer

adjudicated

under

the

principles

of

private contract

law but are now

under

the

rubric

of

judicial review

of

administrative action.

The

traditional rule

in

this

area

has

been that courts would

not

order

specific

performance

of a

contract

of

personal service. However,

even when this rule

was

being

formulated,

the use of an

injunction

to

restrain breach

of a

negative stipulation

often

appeared

to

grant spe-

cific

performance indirectly. While reverence

is

still

paid

to the

tradi-

tional principle

it

does

not

accurately

reflect

the

position today. Courts

are

now

more

willing

to

grant specific performance

or an

injunction

restraining breach

of a

personal service contract, although

the

fre-

quency

of

requests would appear

to

remain low.

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