Absolute discretion: Difference between revisions

{{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.

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''”.<ref>Our honorary American Sensibility Consultant advises that this word might not, ''there'', have quite the playful connotations it does ''here'' on the right side of the Atlantic — but we are sure enlightened sophisticates in the fashionable salons of Manhattan and Menlo Park who are the JC’s regular readers, will enjoy the carefree ''Europeanness'' of seeing such depravity and, for a little moment, being cool with it.</ref>

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.

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.  

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:

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 we have seen,<ref>{{casenote|Barclays|Unicredit}}</ref> is subjective. It favours the owner of the discretion. It is hard for a counterparty to displace. Besides, you can 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]]''.