Private Law Controls on the Delegate
Private Law Controls on the Delegate
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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