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Absolute discretion: Difference between revisions
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A discretion, by its nature, is a self-help remedy. Its exercise requires no permission; no appeal to the court, no arbitral award. One may just do it, at — well — at one’s ''discretion''. Forensic examination of the ''propriety'' of the exercise of a reasonable discretion necessarily come after the fact. Yes; your counterparty might challenge it in court, but will come a lot later, and — honestly? — it will only do that ''if you were being manifestly unreasonable''. The standard of reasonableness, as we have seen,<ref>{{casenote|Barclays|Unicredit}}</ref> is subjective. The owner of the discretion gets the benefit of the doubt. It is hard for a third party to displace. Besides, you can control for this later eventuality by ''not being manifestly unreasonable in the first place''. If you ''are'' being manifestly unreasonable you are beyond help and, frankly, sympathy. | A discretion, by its nature, is a self-help remedy. Its exercise requires no permission; no appeal to the court, no arbitral award. One may just do it, at — well — at one’s ''discretion''. Forensic examination of the ''propriety'' of the exercise of a reasonable discretion necessarily come after the fact. Yes; your counterparty might challenge it in court, but will come a lot later, and — honestly? — it will only do that ''if you were being manifestly unreasonable''. The standard of reasonableness, as we have seen,<ref>{{casenote|Barclays|Unicredit}}</ref> is subjective. The owner of the discretion gets the benefit of the doubt. It is hard for a third party to displace. Besides, you can control for this later eventuality by ''not being manifestly unreasonable in the first place''. If you ''are'' being manifestly unreasonable you are beyond help and, frankly, sympathy. | ||
But, for the time being, if you have a reasonable discretion, you can just box on.<ref>Now, your counterparty ''could'' seek an [[injunction]] to stop you exercising your reasonable discretion. But the [[common law]] is hardly littered with injunctions against the exercise of reasonable discretion.</ref> Curiously, this might be a bad time to ask your [[legal eagles]] what to do. | But, for the time being, if you have a reasonable discretion, you can just box on.<ref>Now, your counterparty ''could'' seek an [[injunction]] to stop you exercising your reasonable discretion. But the [[common law]] is hardly littered with injunctions against the exercise of reasonable discretion.</ref> Curiously, this might be a bad time to ask your [[legal eagles]] what to do, as they are short an option and prone to giving equivocal advice in times of need. | ||
For if you are staring into the abyss — if your genuinely believe your client is corkscrewing into the side of a hill — and you hesitate to exercise a discretion because it might not turn out to have been reasonable, the problem is not with your legal documents. It is with you. Your coat is on the hook. | For if you are staring into the abyss — if your genuinely believe your client is corkscrewing into the side of a hill — and you hesitate to exercise a discretion because it might not turn out to have been reasonable, the problem is not with your legal documents. It is with you. Your coat is on the hook. | ||
Look at it this way: requiring an ''absolute'' (cough) discretion, where a ''reasonable'' one would do, will cost you time, effort and aggravation on every negotiation. This effort — ostensibly to save the aggravation of being challenged in court by your client later where, by definition, your commercial relationship has failed and either you are at war, or one of you is in administration — is about as good an example of over-production as you could ask for. {{maxim|You only need airbags if you don’t steer straight}}. | |||
{{sa}} | {{sa}} | ||
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*[[Commercially reasonable manner]] | *[[Commercially reasonable manner]] | ||
*[[Commercial imperative]] | *[[Commercial imperative]] | ||
*{{maxim|You only need airbags if you don’t steer straight}} | |||