About the power of unilateral modification of contract by public contractor: "Ius variandi"

Isa António

Keywords

Exorbitant powers of the public contractor; administrative contract; power of unilateral modification or ius variandi; replacement of contract balance; related legal figures

Abstract

One of the powers of public administration in the implementation of a public contract, which raises larger issues and doctrinal controversy about its meaning and scope is undoubtedly the so-called “ius variandi”. It translates into the power of reshaping the content of the contract originally concluded with the counterparty, as a rule, private player.
Raises problems particularly in terms of the possible violation of the principle of equality between the parties and the principle of contractual stability.
We analyze this power because it is an exorbitant power of the public contractor in his, considered sometimes abusive and its economic and financial implications in the agreement by the subsequent conclusion of financial rebalancing agreements.
Throughout our study, we delimit the "ius variandi” from another legal forms and related powers, concluding the legitimacy of public contractor when refers to this institute in the public interest and is in our view a power-function or power and duty. We believe that the public contractor does not have the power to make use of unilateral modification power but the duty to use them in his guardian mission to defend the best solution for the citizen, especially when it comes to efficiency in the allocation of public funds.