the time when the chancellor searched
the conscience of a defendant by an examination under oath, and
believed he could reach subjective data that were beyond the
cognizance of a jury, are the last stronghold of the exotic subjective
theory in the common law.

Probably the bargain theory is the one most current in common-law
thinking. It is a development of the equivalent theory. It will not
cover formal contracts but under its influence the formal contracts
have been slowly giving way. The seal "imports" a consideration.
Legislation has abolished it in many jurisdictions and often it does
no more than establish a bargain _prima facie_, subject to proof that
there was in fact no consideration. Courts of equity require a
common-law consideration, at least on the face of their general rule,
before they will enforce a sealed contract. Also the formal contracts
of the law merchant are subject to defeat by showing there was no
consideration, except when in the hands of holders for value without
notice. Here, however, consideration is used in the sense of
equivalent, to the extent of admitting a "past consideration," and the
bargain theory, appropriate to simple contracts, is not of entire
application. On the other hand the extent to which courts today are
straining to get away from the bargain theory and enforce promises
which are not bargains and cannot be stated as such is significant.
Subscription contracts, gratuitous promises afterwards acted on,
promises based on moral obligations, new promises where a debt has
been barred by limitation or bankruptcy or the like, the torturing of
gifts into contracts by equity so as to enforce _pacta donationis_
specifically in spite of the rule that equity will not aid a
volunteer, the enforcement of gratuitous declarations of trust,
specific enforcement of options under seal without consideration,
specific performance by way of reformation in case of security to a
creditor or settlement on a wife or provision for a child, voluntary
relinquishment of a defense by a surety and other cases of "waiver,"
release by mere acknowledgment in some states, enforcement of gifts
by way of reformation against the heir of a donor, "mandates" where
there is no _res_, and stipulations of parties and their counsel as to
the conduct of and proceedings in litigation--all these make up a
formidable catalogue of exceptional or anomalous cases with which the
advocate of the bargain theory must struggle. W