This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
In many cases the alleged consideration for a new promise consists in the discharge of a contract or of an-alleged contract which for some rea-. son was either not enforceable originally or which was enforceable originally, but by reason of facts which arise after its formation, has ceased to be enforceable or has been discharged. Whether the discharge of rights and liabilities is a sufficient consideration for a new contract is a question which can not be answered in general terms, since its answer depends in part upon the reasons which render the original contract unenforceable, or which have caused its discharge, and in part upon the question whether the new contract is intended as a contract of compromise or not. On the one hand, the parties to the original transaction may each assert rights thereunder in good faith, and may attempt to make a new contract by way of a compromise of a disputed claim. In such a case, the validity of the new contract is to be determined by the considerations which apply to compromises of disputed claims.1 On the other hand, the parties may not intend to compromise a disputed claim, influence, see ch. VI. to ch. XVIII, inclusive. For the effect of personal incapacity, see ch. XXXVlll. to ch. LXII, inclusive. 1 See Sec. 612 et seq.
2 See ch. V.
A promise "by the insured to pay the commission of an insurance agent in consideration of the discharge of a contract of insurance by mutual consent is gratuitous in legal effect if the insured could terminate such contract at his election on the ground that the insurance company had not approved the policy. Neikrrk v. Williams (W. Va.), L. R. A. 1918F, 665, 94 S. E. 947.
3 See Sec. 537 et seq.
4 See ch. VII, VIII, IX and X. 5 See Sec. 354 et seq. and Sec. 378.
6 See Sec. 1040.
If the unenforceable contract has been performed so as to create a quasi-contractual liability,16 the discharge of such quasi-contractual liability is a sufficient consideration without regard to the effect of the original contract itself.17
7 See Sec. 1398 et seq.
8 See Sec. 1402.
9 See Sec. 1402.
10 See ch. XLVI. et seq.
11 See ch. LII.
12 See Sec. 632 and ch. LXXII. and XCI.
13 See Sec. 632 and ch. LXXIL and XCI.
14 See Sec. 634.
15 See Sec. 632 et seq. 16 See ch. XLIV.
17 See Sec. 1413 et seq.
Performance of a promise which is void but not illegal, and which is intended by the parties as a consideration for a promise by the adversary party, eliminates the original want of consideration. Performance by a married woman of her promise to convey realty, void on account of her coverture,18 constitutes a valuable consideration if such conveyance is in such form as to be valid.