ABSTRACT
The concept of ‘hybridity’ currently is being given sustained attention in any other than an obdurately traditional discussion of the law of contract. The private law of contract is recognised to, indeed, not be private, in the sense that the individualism of the ‘will’ theory now is accepted to be an explanatorily and ethically inadequate juristic foundation for contracting, and as such always open to criticism and modification from the communalist perspective of ‘welfarist’ or ‘relational’ theories.2 On the other hand, with the extensive reorganisation of formerly bureaucratically organised State functions along ‘contractual’ lines, public contracting has been elevated from the specialist, apparently marginal, topic of public procurement3 to the key feature of what now is properly described as ‘the contracting State’.4 The result, it appears, has been the emergence in both the private and public sectors of contracts which are hybrid in that they contain a mixture, in differing proportions, of formerly distinct private and public organisational characteristics.5 Such is the significance of the public aspects of what formerly was regarded as private and the private aspects of what formerly was regarded as public that the principal task facing the law of contract appears to be to account for the ‘disappearance’ of the division between private and public or, to put it the other way, the ‘merging’ of the private and public spheres.6
