82,853
edits
Absolute discretion: Difference between revisions
no edit summary
Amwelladmin (talk | contribs) No edit summary |
Amwelladmin (talk | contribs) No edit summary |
||
| Line 11: | Line 11: | ||
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> | 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> Should you seek advice? Well, bear in mind: your [[legal eagles]] are short an option and prone to equivocation at times like this. They will fret not just about [[injunctions]], [[punitive damages]] and all kinds of like phantom tribulations, but whose fault it will be should these be visited upon you, and who said you could go ahead. They will fret less about the consequences should you ''not'' go ahead, since they will presume these would happen anyway, and are less obviously their fault. | ||
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. | ||