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.
At common law the elements of the release were the same as those of any other sealed instrument.1 It was necessary that it should be under seal,2 and that it should be delivered.3 It was probably not necessary that it should be signed,4 and the presence or absence of consideration was immaterial.5 In the broader sense of the term, a release is the consequence of a new contract,6 or of a novation,7 or of an accord and satisfaction,8 as well as of arbitration.9 In this sense of the term, it must possess the elements of an ordinary simple contract. A valid and sufficient offer and acceptance must be shown;10 a sufficient consideration is necessary in most jurisdictions;11 neither the original contract nor the release must contain provisions which were regarded as illegal;12 and the parties must be competent to enter into the new contract.13 In the widest sense of the term, release is regarded as equivalent to discharge, and it is the consequence of a new voluntary agreement of the parties which is intended to act as a discharge of the original liability, or it is the consequence of certain facts to which the law attaches the consequence of a discharge of a prior contract, whether the parties intended them to have that consequence or not. These questions are discussed in this chapter and in the following chapters.