The Case For Specific Performance of Personal Service Contracts
The per se rule against specific enforcement of personal service contracts is well established under Anglo-American contract law. At the same time, there is a well-developed literature suggesting that specific performance is often a superior remedy to money damages, and those arguments apply with equal or greater force to personal service contracts. We, therefore, argue that this per se rule is mistaken. The per se rule has been justified by the need to avoid involuntary servitude, preserve personal autonomy, and husband judicial resources. We argue that these claims cannot justify a per se rule against specific performance, particularly as at-will employees could not be subject to such a remedy and employees with definite term contracts who could be subject to an injunction are generally sophisticated, well-compensated, elite workers with specialized and often hard to replace skills. We argue that the traditional rule allowing specific performance where money damages are inadequate should be applied to personal service contracts in situations where the parties explicitly agree to such a remedy and there is rough equality of bargaining power, such as when employees are represented by counsel. We then apply our proposed rule to three cases, which we label The Coach, the Teacher, and the Pop Star. These stylized examples represent typical employees with fixed term contracts, and we show why our proposal would award specific performance in some cases but not others.