New legislative perspectives on concessions and PPPs: the phenomenon of “living contracts”, mutability, and the theory of incomplete contracts

Abstract

This article examines the complex role of contracts in the context of concessions and public-private partnerships. To this end, it presents the concept of the “living contract”: a modality characterized by its mutability, drawing on the theory of incomplete contracts and shaped by public law. For contracts to be functional—that is, to respond to the needs and challenges that constitute their subject matter—they must be structured in light of those actual needs. In this context, new tools are gaining prominence, redesigning old concepts and postulates. Structurally, this research is organized into three stages: the presentation of the concept of “living contracts,” along with some of its historical foundations; then, the key concept is compared with two contemporary phenomena: disruptive technological transformations and climate change. Finally, the potential advantages that this concept offers in relation to the dynamics of positive law and socioeconomic reality are presented.