REVIEWS
| Published date | 01 March 1955 |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00293.x |
| Date | 01 March 1955 |
REVIEWS
THE
CONTRACTS
OF
PUBLIC
AUTHORITIES: A
COMPARATIVE
STUDY.
By
J.
D.
B.
MITCHELL,
LL.B.,
PE.D.
[London
School
of
Economics
:
George
Bell
&
Sons,
Ltd.
xxxi
and
244
pp.
258.1
SINCE
the War
a
large number of young lawyers has joined the ranks of
university teachers of law. Hitherto
it
has not been possible to judge whether
any
distinguished jurists
wiU
emerge from their ranks because
its
members
have been preoccupied with the preparation of teaching courses, the editing
of standard works (where
a
high level has been attained) and perhaps with
the publication of short and ephemeral “bread and butter
”
articles and notes
as
tangible support for
a
claim to promotion on the university ladder. As
full-scale works by those of
this
generation
are
now being produced, there
is
more material on which to rest
a
judgment. The latest
is
this
comparative
survey of the contracts of public authorities by
J.
D.
B.
Mitchell, recently
appointed Professor of Constitutional Law in the University of Edinburgh.
His concern
is
with the field of conflict between the concept of sanctity of
contractual obligations and the general powers of the
State.
His thesis is
that
a
legal principle of
“
governmental effectiveness
”
is
of widespread applica-
tion, and that in relation to contracts it means that no contract would be
enforced when some essential governmental activity would be thereby rendered
impossible
or
seriously impeded.
“
Governmental activity
”
connotes not
only
activities
of
the central government but also those of local and other public
authorities provided that, in any event, the activity is
so
important that inter-
ference with it would be of considerable disadvantage to the community.
He proceeds to discuss this principle in the light of English cases;
especially
The Amphit7itel
with its decision that the Crown “cannot
by
contract hamper
its
freedom of action in matters which concern the welfare
of the State,” and those dealing with the dismissibility of Crown servants and
the need for parliamentary approval of expenditure. He contends that all
these cases on public contracts are reconcilable with his doctrine of “govern-
mental effectiveness.” His criticism of the alleged rule that
a
body to whom
a
discretion has been entrusted cannot bind itself
as
to the manner
of
exercising that discretion in the future is brilliant in its utilisation of the
American discussions on
governmental/proprietary
functions, in
its
demon-
stration of the comparable position of the Crown and other public bodies,
leading to the conclusion that what
is
involved
is
not
a
question
of
incapacity to contract but the problem of to what extent there
is
a
power
(based on public policy) to override contractual obligations.
The author next turns his attention to the
U.S.A.
Particularly refreshing is
the courageous way in which he tackles the constitutional problems of the
contract clause, eminent domain, police powers, tax immunities and rate regula-
tion; he is not content to, take the easy course of concentrating on those
aspects of Federal contracts which are comparatively untainted
”
by legal
problems of the Constitution. Not only is this the clearest short account of
the working of these
rules
read by
your
reviewer, but also the recognition in the
U.S.A.
that the principle of sanctity of contracts must give way in some
circumstances to the necessities of government is strikingly demonstrated.
There follows a clear account of the French
contrut
administratif where
special rules apply to certain contracts having
le
but
de
service
public.
Professor Mitchell admires many of the fundamental changes in the law of
1
[192l]
3
K.B.
600.
190
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