Contracts of Personal Service and Determinable Contracts: Section 14

Section 14 lists the contracts a court will not specifically enforce even when they are perfectly valid. Two of its heads recur in examinations above all others: contracts that depend on a party's personal qualifications, and contracts that are in their nature determinable. This note takes those two head on, with the reason behind each and the leading illustrations, and places them alongside the other Section 14 bars so you can see the whole picture.

Figure: The Section 14 bars, with the personal-service and determinable-contract heads explained and the reason behind each

1. The Scheme of Section 14

2. Contracts of Personal Service

A contract dependent on the personal qualifications of a party, of which a contract of personal service is the prime example, will not be specifically enforced. The reason is twofold. First, a court cannot compel an unwilling person to render personal service; to do so would come close to forced labour and would achieve nothing of value. Second, the court cannot supervise the quality of service from day to day, so a decree would be idle. The settled rule is that a court will not, as a general rule, force an employer to keep a servant, nor a servant to serve an unwilling master. The remedy for breach is damages, not a decree to serve.

3. Determinable Contracts

A contract which is in its nature determinable, that is, one which either party may bring to an end at his own option, will not be specifically enforced. The reason is plain: it would be futile for a court to decree performance of a contract that the defendant could lawfully terminate the very next moment. The court will not do a useless act. The classic illustrations are a partnership at will, which any partner may dissolve by notice, and an agency, which the principal may generally revoke. Because these arrangements can be ended at will, a decree compelling their continuance would be worthless.

4. A Worked Example

Suppose a singer agrees to perform exclusively for a concert promoter for a year, and midway refuses to sing. The promoter cannot obtain a decree compelling the singer to perform, for the contract depends on her personal qualifications and no court can supervise the quality of her singing; the promoter is left to damages, and at most to a negative injunction restraining her from singing elsewhere in breach. Change the facts to a partnership at will between two traders: if one serves notice of dissolution, the other cannot obtain specific performance to keep the firm alive, because the contract is in its nature determinable. In each case the bar in Section 14 sends the injured party to compensation, not to a decree of performance.

5. Frequently Asked Questions

Q. Why will a court not specifically enforce a contract of personal service?
A. Because it cannot compel an unwilling person to render personal service, nor supervise the quality of that service; the remedy for breach is damages, not a decree to serve.

Q. Are there exceptions to the personal-service bar?
A. Yes, by force of statute or public law: a wrongfully dismissed public servant, a worker protected by an industrial statute, or a person removed in breach of a statutory body's regulations may be reinstated.

Q. What makes a contract determinable?
A. That either party may lawfully bring it to an end at his own option, such as a partnership at will or a revocable agency. A court will not decree performance of what can be terminated at once.

Q. Can a singer or artist be compelled to perform?
A. No. The contract depends on personal qualifications, so specific performance is barred. At most the court may grant a negative injunction restraining performance for a rival in breach of an exclusivity term.