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{{a|negotiation| | {{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''. | ||
In none of these cases does the adjective “absolute” move the conversation on. | |||
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''”. | |||
==== ''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. | |||
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 comes after the fact. 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 | ''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.'' | ||
It seems to us this argument has more mouth than trouser: | |||
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. | |||
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.'' | 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.'' | ||
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*[[Commercial imperative]] | *[[Commercial imperative]] | ||
*{{maxim|You only need airbags if you don’t steer straight}} | *{{maxim|You only need airbags if you don’t steer straight}} | ||
{{Linkedin|Oct 2021}} | |||
{{ref}} | {{ref}} | ||