dissenting.
I write separately because the majority has elevated the technical over the substantial and has thereby frustrated the bankruptcy court and the district court in their efforts to achieve a just result.
In the first place, the proper standard of review here is “abuse of discretion.” 6 A Charles A. Wright et al., Federal PRACTICE and Procedure § 1493, at 41 (2d ed. 1990) (“The decision whether the issue has been tried by express or implied consent is a matter of the trial court’s discretion and will not be reversed except upon a showing of abuse.”); accord Sunstream Jet Express, Inc. v. International Air Serv. Co., 734 F.2d 1258, 1272 (7th Cir.1984) (“It is well-settled that ‘[i]n determining whether to permit an amendment under Fed. R.Civ.P. 15(b), the district court has broad discretion and will not be reversed except upon a showing of abuse.’ ”).
The majority argues that, because the law of contribution and the law of mortgage foreclosure are not identical, the parties did not consent to try the contribution issue. It seems to me that identically is not necessary. It should be enough that the evidence admitted to establish the pleaded claim supports the unpleaded one. In any event, it was Rivinius who originally sued for a declaration that it was not obligated to Cross and that Cross’ claim should be subordinated. It was then that Cross counterclaimed to foreclose the mortgage. It is not too much of a stretch to find that Rivinius consented to whatever theory Cross pursued with respect to the alleged obligation.
In addition, the majority asserts that Riv-inius was not given the opportunity to demonstrate a defense or to present evidence on the amount owed on the contribution claim. On remand, however, the bankruptcy court took additional evidence on the contribution issue, the amount of contribu*1178tion and possible defenses.1 Though given this opportunity to respond and defend, Rivinius offered no further evidence.
The majority seems to have succeeded in resuscitating the theory-of-the-pleadings doctrine, clearly rejected in the Federal Rules of Civil Procedure. I would not take that course and therefore respectfully dissent.
.The issues stipulated by the parties to be resolved on remand were the following:
A. CONTRIBUTION
1. On the facts proved before this court in the trial, did CROSS prove the necessary elements for a right to contribution? (Legal issue)
2. If CROSS proved the necessary elements for a right to contribution, what is the amount of the contribution right based upon facts proved at trial? (Legal issue)
B. LACHES
1. Is laches an appropriate defense to CROSS’S claim for CONTRIBUTION? (Legal issue)
2. If laches is a potential defense for DEBTOR in this case, did CROSS sit on its rights a sufficient length of time to apply the doctrine of laches? (Legal and factual issue)
3. If laches is a potential defense for DEBTOR in this case, was DEBTOR sufficiently prejudiced by the actions of CROSS so as to warrant the application of the defense of lach-es? (Legal and factual issue)
4.If a right to CONTRIBUTION has been proved by CROSS, should leave be granted to amend the pleadings? (Legal issue)
C. STATUTE OF LIMITATIONS
1. If CROSS properly has a cause of action against DEBTOR for CONTRIBUTION, when did the STATUTE OF LIMITATIONS in respect to such cause commence ¡running? (Factual and legal issue)
2. If CROSS properly has a cause of action against DEBTOR for CONTRIBUTION, is that action barred by the STATUTE OF LIMITATIONS? (Legal issue)
3. Did the filing of suit by DEBTOR waive any STATUTE OF LIMITATIONS defense which DEBTOR might have? (Legal issue)
D. AMENDMENT OF PLEADINGS
1. If a right to CONTRIBUTION has been proved, should leave be granted to amend the pleadings? (Legal issue)
In re Rivinius, No. 78-10191/C (Bankr.C.D.Ill. Apr. 2, 1991), at 13.