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Delegation of Governmental Power to Private PartiesA Comparative Perspective$
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Catherine M. Donnelly

Print publication date: 2007

Print ISBN-13: 9780199298242

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199298242.001.0001

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Private Law Controls on the Delegate

Private Law Controls on the Delegate

(p.329) 8 Private Law Controls on the Delegate
Delegation of Governmental Power to Private Parties

Catherine M Donnelly

Oxford University Press

Human rights obligations and administrative law obligations are, in practice, rarely extended to private delegates. This chapter assesses the extent to which private law can provide an appropriate substitute for these obligations, focusing on contract and tort. Given that contract is one of the primary mechanisms through which private delegation is achieved, commentators, and particularly those writing from an economic perspective, have often embraced contract law as ‘a critical source of accountability’, while tort law requires consideration as it is an area of private law that is frequently modified to accommodate governmental concerns. It is argued here, however, that tort law and contract law do not provide sufficiently extensive mechanisms of holding private delegates accountable, particularly, for example, given the difficulties of recognising third party beneficiaries to contracts. Proposals for improving the drafting of government contracts are presented.

Keywords:   government contract, tort, third party beneficiaries, drafting public contracts, agency, constitutional tort, human rights, principal-agent relationships

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