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{{a|negotiation|}}{{good faith capsule}} | |||
===[[Absolute discretion]]=== | |||
To be sure, sometimes you might want to be able to act — or, more likely, ''not'' act — in your [[absolute discretion]]. Here you do not want argument. At least for “omission” cases, the “[[I never said it was]]” principle ought to get you home. But you might say the following: | |||
:'''''Standard of conduct''': Each party must act in good faith and (unless expressly entitled to act in its absolute discretion) in a [[commercially reasonable manner]].'' | |||
A | ====The law==== | ||
A good place to look is {{Casenote|Barclays|Unicredit|[2014] EWCA Civ 302}}, which considered what a party must do if it is required to act in a commercially reasonable manner. As a corrective to any irrationally giddy feelings of happiness this may induce, see also {{casenote|Crowther|Arbuthnot Latham & Co Ltd}} — this is not a licence to do what the hell you like. If a discretion is designed for one purpose, you can’t use it to the exclusion of that purpose, to achieve another. | |||
====Bottom line==== | |||
This boils down to one of the [[JC]]’s home-baked {{tag|Latin}} aphorisms: ''[[Noli mentula esse]]''. | |||
===In popular fiction=== | |||
[[commercially reasonable manner]] can be found in all sorts of places: | |||
*{{tag|FCA}} [[conduct of business rules]] (including the “{{cobsprov|client’s best interest}}” rule) impose it as a minimum standard of conduct. | |||
*Both versions of the Industry standard ISDA {{tag|CSA}} impose it as standard; | |||
*It’s a standing term of the [[Uniform Commercial Code]] (you ''can'' contract out of it, though ''why'' you would is harder to say); | |||
*Recent case-law ({{casenote|Barclays|Unicredit}}) finds that acting in a commercially reasonable manner means having regard to one’s own commercial interests, not the other chap’s. | |||
{{sa}} | |||
*{{csaprov|Good Faith and Commercially Reasonable Manner}} (CSA Provision) | |||
*[[Implied term]]s (could a {{tag|commercially reasonable}} standard ever be implied? In England, no; in the US, yes). | |||
*[[Such consent not to be unreasonably withheld]] | |||
{{ | *{{casenote|Crowther|Arbuthnot Latham & Co Ltd}} | ||
*{{casenote|Barclays|Unicredit}} | |||
{{c|Negotiation hacks}} | |||
{{ref}} | |||
*{{ |