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.
Since a new promise to pay a debt barred by bankruptcy must, to be enforceable against the debtor, be clear and unequivocal, a part payment of a debt is not of itself sufficient to waive the bar of bankruptcy.1 This is so whether the part payment is made after the discharge in bankruptcy has been granted,2 or after proceedings in bankruptcy have been begun and before the discharge in bankruptcy has been granted.3 While the rule that part payment does not revive the original debt is well settled, it is unfortunate that it has been justified on the theory that bankruptcy discharges the original debt as distinguished from the remedy thereon. "The Statute of Limitations, being a statute of repose, does not discharge the debt, but only bars the remedy. An implied promise to pay revives the debt so far as the statute is concerned as effectually as an express promise. But the decree of the bankrupt court discharges and extinguishes the debt, and in order to support a legal obligation to pay the old indebtedness there must be an express promise."4
5 United States. Allen v. Ferguson, 85 U. S. (18 Wall.) 1, 21 L. ed. 854.
Alabama. Torry v. Krauss, 149 Ala. 200, 43 So. 184.
Illinois. Classen v. Schoenemann, 80 111. 304.
Maine. Spooner v. Russell, 30 Me. 454.
New York. Herrington v. Davitt, 220 N. Y. 162, 1 A. L. R. 1700, 115 N. E. 476.
See also, Turner v. Chrisman, 20 Ohio 332.
1 1llinois. Stern v. Smith, 225 111. 430, 80 N. E. 307.
Kansas. Needham v. Matthewson, 81 Kan. 340 [sub nomine, Matthewson v. Needham, 26 L. R. A. (N.S.) 274, 105 Pac. 436].
Kentucky. Tolle v. Smith's Executor, 98 Ky. 464, 33 S. W. 410.
Massachusetts. Merriam v. Bayley, 55 Mass. (1 Cush.) 77, 48 Am. Dec. 591; Cambridge Savings Institution v. Littlefield, 60 Mass. (6 Cush.) 210; Jacobs v. Carpenter, 161 Mass. 16, 36 N. E. 676; Heim v. Chapman, 171 Maes. 347, 50 N. E. 529.
New Hampshire. Stark v. Stinson, 23 N. H. 259.
New York. Lawrence v. Harrington, 122 N. Y. 408, 25 N. E. 406.
"Although the moral obligation to pay the discharged debt is a sufficient consideration for a promise to pay, the cause of action rests on the new promise, and not upon the old debt. This furnishes the distinction between a cause of this kind and one where the defense is the Statute of limitations. The new promise to pay a debt which has been discharged in bankruptcy must be a clear, distinct and unequivocal promise to pay the specific debt without qualification or condition, and can not be implied from the fact of part payment or from other circumstances." Needham v. Matthewson, 81 Kan. 340 [sub nomine, Matthewson v. Needham, 26 L. R. A. (N.S.) 274, 105 Pac. 436].
2 Merriam v. Bayley, 55 Mass. (1 Cush.) 77, 48 Am. Dec. 591; Dyer v. Isham, 4 Ohio C. C. 429, 2 Ohio C. D. 633.
3 Heim v. Chapman, 171 Mass. 347, 50 N. E. 529.
4 Needham v. Matthewson, 81 Kan. 340 [sub nomine, Matthewson v. Needham, 26 L. R. A. (N.S.) 274, 105 Pac. 436].