Also known as: discretionary powers · discretion
Written by attorneys · grounded in primary & secondary sources — see below
Authority vested in a decision-maker to choose whether and how to act within prescribed bounds. The holder may elect to exercise the power or refrain based on judgment. Limits such as standards of distribution or reasonableness may constrain the choice without eliminating the discretionary character.
Dominic Drake is the beneficiary of a discretionary trust administered by a trustee. A judgment creditor of Drake demands that the trustee make a distribution to satisfy the debt. The court refuses the demand because the trustee's power to distribute remains discretionary even when expressed through a standard.
Davenport Pharmaceuticals converts equipment belonging to Duarte Shipping. After suit, Davenport offers to return the equipment in good faith and without substantial impairment to its value. The court exercises discretion to reduce the damages award by the amount of the tender.
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Dominion Capital owns units in a community governed by an association. The association adopts a new design-control rule under its discretionary powers. A member challenges the rule as unreasonable. The court places the burden on the member to prove the breach of the duty to act reasonably.
Deborah Dunn testifies for the prosecution in a criminal trial. The defendant seeks to cross-examine her about a prior juvenile adjudication to show bias. The trial court exercises discretion to permit the inquiry when necessary to attack credibility under the Confrontation Clause.
Duffy Construction's shareholders enter an agreement that eliminates the board of directors entirely. The agreement is effective among the shareholders and the corporation despite restricting the board's ordinary discretion. Directors are relieved of liability to the extent their powers are limited.
Denise Donovan is beneficiary of a trust whose trustee may distribute for her health and education. A child-support creditor seeks to compel payment. The court holds that the trustee's discretion expressed as a standard of distribution prevents the creditor from forcing a distribution.
Yes. The power retains its discretionary character even when the instrument expresses the discretion through a standard such as health, education, or support. A creditor therefore cannot compel distribution merely because a standard exists.
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A court may reduce damages when the conversion occurred in good faith under a reasonable mistake and the chattel's value to the owner is not substantially impaired. The decision lies in the court's discretion.
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The association must act reasonably when exercising discretionary powers including rulemaking, enforcement, and design-control authority. A member challenging the action bears the burden of proving a breach of that duty.
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Yes. An agreement among shareholders may eliminate the board or restrict its discretion and powers. The agreement binds the shareholders and corporation and shifts liability accordingly.
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…once completed is made forever. The requisites to be performed by the Secretary are ministerial ascertained by law and he has no discretion. In contemplation of law they are as if done. These justices exercise part of the judicial power of the United States and ought therefore to be independent. The applicants conceive…