Duhaime's Law Dictionary


Personal Services Contract Definition:

A contract in which the skills or talents of a party are material.

Related Terms: Independent Contractor, Employee

The distinctive feature of a personal service contract is that it must follow the person with the skills at the root of the contract.

Even from the times of Justinian, circa 533 AD, Roman contract law deferred to the Latin maxim servitia personalia sequuntur personam: personal services follow the person (Book 2 Institutes 374).

athlete photoOne of the most frequently used examples of the personal services contract is the athlete's contract (hockey, baseball, football etc.) although almost all employment contracts are personal services contracts.

In Re Terry, Justice Drake summarized the law as follows:

"As a general proposition, contract rights and duties are assignable. Notwithstanding the general rule, ... certain classes of contracts are inherently nonassignable in their character, such as promises to marry, or engagements for personal services, requiring skill, science, or peculiar qualifications. When rights arising out of contract are coupled with obligations to be performed by the contractor, and involve such a relation of personal confidence that it must have been intended that the rights should be exercised and the obligations performed by him alone, the contract, including both his rights and his obligations, cannot be assigned without the consent of the other party to such contract.

"That certain contractual rights and duties, such as those typically found in personal services contracts, cannot be assigned without the consent of the other party is a well-established rule of law."

In 1994, Justice Reinhard of the Missouri Court of Appeals wrote:

"A personal services contract is one resting on the skills, tastes, or science of a party, that is, those contracts wherein personal performance by the promisor is the essence and the duty imposed cannot be done as well by others as by the promisor himself."1

To the same effect, this, in National Hyrdo-Vac (Justice Mixon):

"[A] personal services contract contains obligations involving such a relation of personal confidence that the parties intend performance solely by the party obligated. In a personal services contract the personality of one of the parties is material. No party can perform except the party named in the contract, unless the parties agree otherwise. Personal services are not those that "may be as well performed by others as by the individual with whom the contract was made."

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