power, obligation, contracts, government, political theory, public entity, Canada
This paper analyzes contracts made by the Government in terms of political theory. From this perspective, it explores the assumptions, utility, and accuracy of the private law model which historically has governed the Government's liability in contract. The paper's overarching objective is to question the propriety of applying private law principles to a public entity, particularly within the context of liberal democratic values to which both the Canadian State and society are pledged. In accord with McAuslan, it regards theoretical inquiry as significant. It asserts that if the current model of State liability collides with fundamental Canadian political constructs, or falls into descriptive inaccuracy, or generates false conclusions, the model ought to be replaced with a more competent one.
Shannon Kathleen O'Byrne, "Public Power and Private Obligation: An Analysis of the Government Contract" (1992) 14:3 Dal LJ 485.