f consideration for the validity of simple
contracts was unfortunately confused by commentators, almost from the
beginning of its history, with the perfectly different rules of the
Roman law about _nudum pactum_, which very few English lawyers took the
pains to understand. Hasty comparison of misunderstood Roman law,
sometimes in its civil and sometimes in its ecclesiastical form, is
answerable for a large proportion of the worst faults in old-fashioned
text-books. Doubtless many canonists, probably some common lawyers, and
possibly some of the judges of the Renaissance time, supposed that _ex
nudo pacio non oritur actio_ was in some way a proposition of universal
reason; but it is a long way from this to concluding that the Roman law
had any substantial influence on the English.

The doctrine of consideration is in fact peculiar to those jurisdictions
where the common law of England is in force, or is the foundation of the
received law, or, as in South Africa, has made large encroachments upon
it in practice. Substantially similar results are obtained in other
modern systems by professing to enforce all deliberate promises, but
imposing stricter conditions of proof where the promise is gratuitous.

Deeds.

As obligations embodied in the solemn form of a deed were thereby made
enforceable before the doctrine of consideration was known, so they
still remain. When a man has by deed declared himself bound, there is no
need to look for any bargain, or even to ask whether the other party has
assented. This rugged fragment of ancient law remains embedded in our
elaborate modern structure. Nevertheless gratuitous promises, even by
deed, get only their strict and bare rights. There may be an action upon
them, but the powerful remedy of specific performance--often the only
one worth having--is denied them. For this is derived from the
extraordinary jurisdiction of the chancellor, and the equity
administered by the chancellor was not for plaintiffs who could not show
substantial merit as well as legal claims. The singular position of
promises made by deed is best left out of account in considering the
general doctrine of the formation of contracts; and as to interpretation
there is no difference. In what follows, therefore, it will be needless,
as a rule, to distinguish between "parol" or "simple" contracts, that
is, contracts not made by deed, and obligations undertaken by deed.

Promise and offer.

From the concept