11.4.2 Defence: Personal character of the contractual relationship

Chapter 4 is devoted to contractual obligations for personal services. According to the current law, an obligee can defend against a claim for specific performance of a personal contractual obligation by referring to the "nature of the obligation" (Article 3:296(1)). It has been argued that the personal character of the contractual relationship as such does not justify the exclusion of an order for specific performance. It has furthermore been argued that the classic argument that an order for specific performance of a contractual relationship of a personal service would infringe upon the personal freedom of the obligee should be nuanced. The order itself does not infringe upon the freedom of the obligee, although the enforcement of the order may do so. Instead of the current defence, namely that the nature of the personal contractual obligation requires avoidance of the duty to specifically perform, it has been suggested to introduce a more balanced principle in the Dutch Civil Code. An obligee of a contractual relationship with a personal character should be able to defend against a claim for specific performance by stating that, due to a change in circumstances, compulsory specific performance deeply infringes upon his or her private life. Therefore, the judge should, in principle, order an obligee to specifically perform a contractual obligation for personal services. It is, however, in this author's opinion, not possible to enforce such an order. In this regard, a distinction can be drawn between two different types of contractual obligations for personal services, namely highly personal services and nonhighly personal services. Contractual obligations for highly personal services impose a great burden on the creative, intellectual, physical or religious freedom of the obligee. Although contractual obligations for non-highly personal services need to be performed by the obligee, the obligee need not use as much of his or her unique talents to perform the obligations. An order to specifically perform a highly personal contractual obligation is not enforced by means of a fine. It is, in this author's opinion, unjustifiable to financially stimulate an obligee to specifically perform a contractual obligation that infringes upon his or her fundamental freedom. Furthermore, a fine can eventually frustrate the intended outcome, because highly personal services can often only be performed in a setting of free-dom. A judge who orders an obligee to specifically perform a highly personal service should, as long as this is claimed, also hold that the obligee is also liable to pay damages if he or she does not adhere to the order within a certain period of time. The additional value of an order for specific performance, which is replaced by an obligation to pay damages in case of non-adherence, is that it provides an extra incentive for the obligee to perform the contractual obligation. An order for specific performance of a contractual obligation for a non-highly personal service can be supplemented with a fine to add additional force to the judgment.