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-{{a|negotiation|[[File:Absolute unit.png|450px|thumb|center|An [[absolute]] unit, yesterday.]]}}Also known as “[[discretion]]”, seeing as a [[discretion]] is not really the sort of thing that admits of degrees. You either ''have'' a discretion, or you ''don’t'' and, generally in a [[contract]], as in life, you ''do'', except where you have categorically agreed you do ''not''. In none of these cases does the adjective “absolute” move the conversation on.
+{{a|negotiation|{{image|Absolute unit|png|An [[absolute]] unit, yesterday.}}}}Absolute discretion — also known as just “[[discretion]]”, seeing as a [[discretion]] is not really the sort of thing that admits of degrees — is something you either ''have'' or you ''don’t''. Generally in a [[contract]], as in life, you ''have'' it, except where you have categorically agreed you do ''not''.
-That said, as a percussive adjective, “absolute” does pleasingly punctuate a sentence, rather, in the same way it does when placed next to the word “''twat''”.
+In none of these cases does the adjective “absolute” move the conversation on.
-An “absolute” [[discretion]] is to be contrasted in theory, if not really in practice, with one that is bounded by an overriding obligation to act “in [[good faith]], and in a [[commercially reasonable manner]]”. But, as we have sounded off [[Commercial imperative|elsewhere]], any merchant that acts in [[bad faith|''bad'' faith]], or in a [[Commercially reasonable|commercially ''un''reasonable]] manner, ''even if his contract permits it'', should not expect to have clients for very long.
+That said, as a percussive adjective, “absolute” does pleasingly punctuate a sentence, rather in the same way it does when placed next to the word “''unit''”.
-You will hear it [[Special pleading|specially plead]] that, for all its superficial appeal, a component of “reasonableness” in a discretion invites argument about its scope, precisely at the point where you might not want any. When, for example, you are exercising a reasonable discretion to demand more [[margin]], or something like that.
+==== ''Reasonable'' discretion ====
+An “absolute” [[discretion]] is to be contrasted in theory, if not really in practice, with a reasonable one, that is bounded by an overriding obligation to act “in [[good faith]], and in a [[commercially reasonable manner]]”. But, as we have sounded off [[Commercial imperative|elsewhere]], any merchant that acts in ''[[Bad faith|bad]]'' [[Bad faith|faith]], or in a [[Commercially reasonable|commercially ''un''reasonable]] manner, ''even if his contract permits it'', should not expect to have clients for very long.
-And here we pause to remind you that this site is here to entertain, poke fun and provide food for thought, and not to give actionable legal advice. For it seems to us this argument has more mouth than trouser:
+You will hear it [[Special pleading|specially pled]] that, for all its superficial appeal, a component of “reasonableness” in a discretion invites argument about its scope, precisely at the point where you might not want any. When, for example, you are exercising a reasonable discretion to demand more [[margin]], or something like that.
-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.
+''Here we pause to remind you that this site is here to entertain, poke fun and provide food for thought, and not to give actionable legal advice.''
-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> Bear in mind: your [[legal eagles]] are short an option and prone to equivocation at times like this. They will fret not just about [[injunction]]s, [[punitive damages]] and all kinds of like-minded phantom tribulations, 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 they will presume these would happen anyway, so they cannot obviously be blamed for them.
+It seems to us this argument has more mouth than trouser:
-Look at it this way: requiring an ''absolute'' 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 later challenge in court”; thereby addressing a scenario where, by definition, your [[Commercial imperative|commercial relationship]] has failed utterly and either you are at war, or one of you is in insolvency — is about as good an example of the [[waste]] of [[over-processing]] as you could ask for.
+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 comes after the fact.
-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.
+Yes; your counterparty ''might'' challenge it in court, but that will come a lot later, and — honestly? — only ''if you were being unreasonable''. The standard of reasonableness, as the great case of ''[[Barclays v Unicredit]]'' tells us, is subjective, judged from the perspective of she whose conduct is being assessed. It favours the owner of the discretion. It should not be second-guessed: it is hard for others to displace.
+Besides, you can always control for this later eventuality by ''not being unreasonable in the first place''. If you ''are'' being unreasonable, you are beyond help and, frankly, sympathy. ''[[Noli mentula esse]]''.
+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> A sensible rule of thumb is to contrast the worst that could happen if you ''do'', with the worst that could happen if  you ''don’t.''
+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.
+Look at it this way: requiring an ''absolute'' 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 later challenge in court”  — addresses the remote scenario where your [[Commercial imperative|commercial relationship]] has failed utterly and either you are at war, or one of you is in insolvency. This is about as good an example of the [[waste]] of [[over-processing]] as you could ask for.
+For, if you are staring into the abyss — if you genuinely believe your client is corkscrewing into the side of a hill — and you hesitate to exercise a discretion designed to protect you because it might not turn out to have been reasonable, the problem is not with your legal documents. It is with ''[[Get your coat|you]]''.
 {{maxim|You only need airbags if you don’t steer straight}}.
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 *[[Commercial imperative]]
 *{{maxim|You only need airbags if you don’t steer straight}}
+{{Linkedin|Oct 2021}}
+{{ref}}