Absolute discretion: Difference between revisions

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. But the [[common law]] is hardly littered with injunctions against the exercise of a reasonable discretion.</ref> Bear in mind: your [[legal eagles]] are short an option. They are prone to equivocation at times like this. They will fret not just about [[injunction]]s, [[punitive damages]] and all kinds of like-minded tribulations — the legal mind is beset with phantoms — but ''whose fault it will be'' should any of them be visited upon you, and ''who said you could go ahead''. They will fret less about the consequences should you ''not'' go ahead, since presumably these were going to happen anyway, so they cannot obviously be blamed for them.