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.
A discharge in bankruptcy does not discharge the debt itself but merely creates a bar to enforcing it, which the debtor may take advantage of, if he wishes. There is so great a difference between the discharge of a debt and its bar by bankruptcy, that a promise made by a third person to a creditor is supported by sufficient consideration if the creditor discharges the debtor from liability on a debt already barred by bankruptcy.1 The debtor may accordingly prefer not to take advantage of his discharge; and may waive the bar thereof.' Such a waiver may be effected by a new promise to pay a debt which is otherwise barred by such discharge.2 Such a promise is enforceable if made after the proceedings in bankruptcy have been instituted but before a discharge has been granted.3 It has, however, been held that in order to waive the bar, the new promise must be made after discharge and before suit is brought upon the debt.4 Such new promise may be enforced by the assignee of the claim which the debtor thus promises to pay.5 In order to revive a debt which has been barred by a discharge in bankruptcy an express promise is necessary.6 A note given for such pre-existing debt is a sufficient express promise.7 So is a confession of judgment for such debt.8 Such promise must be clear and unequivocal.9 It is often said that such a promise must be unconditional.10 This means nothing more, however, than that such a promise is unenforceable if a condition is annexed thereto which is not fulfilled.11 Thus a promise by the debtor to the creditor to pay a debt barred by bankruptcy if he were given time is unenforceable if it is not shown that such offer was accepted and a definite time fixed for extension.12 If the debtor offers to pay in installments and the creditor refuses this offer, there is no new contract, and the bar of the statute is not waived.13 On the other hand, if the condition annexed to such promise is fulfilled, the promise is enforceable.14 Thus if the debtor promises to pay "when he is able " such promise is enforceable on proof that he is able.15 An oral promise to pay such debt is sufficient in the absence of statute,16 though if the statute specifically requires a written contract to be enforceable, such contract cannot be enforced if not in writing.17
7 Lackey v. Steere, 121 111. 598; 2 Am. St. Rep. 135; 13 N. E. 518.
8 Bryant v. Kinyon, 127 Mich. 152; 53 L. R. A. 801; 86 N. W. 531.
9Balk v. Harris, 130 N. C. 381; 41 S. E. 940; Bailey v. Gleason, - Vt. - ; 56 Atl. 537.
10 Jarecki Mfg. Co. v. McElwaine, 107. Fed. 249.
1 Webster v. Le Compte, 74 Md. 241'; 22 Atl. 232.
2 Allen v. Ferguson, 18 Wall. (U. S.) 1; Lambert v. Schmalz, 118 Cal. 33; 50 Pac. 13; Willis v. Cush-man, 115 Ind. 100; 17 N. E. 168; Thornberry v. Dils, 80 Ky. 241; Brooks v. Paine (Ky.), 77 S. W. 190: Way v. Sperry, 6 Cusb. (Mass.) 238; 52 Am. Dec. 779; Craig v. Seitz, 63 Mich. 727; 30 X. W. 347; Smith v. Stanchfield. 84 Minn. 343; 87 N. W. 917; Wislizenus v. O'Fil-lon, 91 Mo. 184; 3 S. W. 837;
Dusenbury v. Hoyt, 53 N. Y. 521; 13 Am. Rep. 543; Turner v. Chris-man, 20 Ohio 332; Murphy v. Crawford, 114 Pa. St. 496; 7-Atl. 142; Hobough v. Murphy, 114 Pa. St. 358; 7 Atl. 139.
3 Allen v. Ferguson. 18 Wall. (U. S.) 1; Knap'p v. Hoyt, 57 la. 591; 42'Am. Rep. 59; 10 N. W. 925; Lerow v. Wilmarth, 7 All. (Mass.) 463; 83 Am. Dee. 701; Hill v. Trainer, 49 Wis. 537; 5 N. W. 926.
4 Thornton v. Nichols, 119 Ga. 50; 45 S. E. 785.
5 Wolffe v. Eberlein, 74 Ala. 99; 49 Am. Rep. 809; Badger v. Gil-more, 33 N. H. 361; 66 Am. Dec. 729.
6 Shockey v. Mills, 71 Ind. 288; 36 Am. Rep. 196; Turner v. Chris-man, 20 Ohio 332; Dyer v. Isham, 4 Ohio C. C. 429; 2 Ohio C. D.
633; Bolton v. King, 105 Pa. St. 78.
7 Christie v. Bridgman, 51 N. J. Eq. 331; 25 Atl. 939; 30 Atl. 429.
8 Dewey v. Mover, 72 N. Y. 70.
9 Meech v. Lamon, 103 Ind. 515; 53 Am. Rep. 540; 3 N. E. 159; Brewer v. Boynton, 71 Mich. 254; 39 N. W. 49; Smith v. Stanchfield. 84 Minn. 343; 87 N. W. 917; Riggs v. Roberts, 85 N. C. 151; 39 Am. Rep. 692; McDougall v. Page. 55 Vt. 187; 45 Am. Rep. 602.
10 Egbert v. McMichael. 9 B. Mon. (Ky.) 44; Bigelow v. Norris, 139 Mass. 12; 29 N. E. 61; Brown v. Collier, 8 Humph. (Tenn.) 510.
11 Smith v. Stanchfield. 84 Minn. 343; 87 N. W. 917.
12 Smith v. Stanchfield, 84 Minn. 343; 87 N. W. 917.
13 International Harvester Co. v. Lyman, 90 Minn. 275; 96 N. W. 87.