Similarly , where the intervener pays on account of the debt but not on behalf of the debtor , there is no reason why he should have conducted himself as the debtor's agent so long as the debtor's assent is not explained by reference to the law of agency .sx There is a further and different reason for preferring the second , non - contractual , explanation .sx The agency solution is only necessitated by the assumption that payments in discharge generate unexecuted promises .sx That assumption mistakes the nature of discharge even in the simple two party situation , for even there a payment in discharge is a self-executing transaction leaving the recipient creditor with nothing more to do .sx That being the case in the two party situation , there is no reason why payments in discharge by third parties should be differently construed ; no reason therefore to see the debtor's adoption as an attempt to make himself a party to an executory contract rather than as an acceptance of a benefit already executed .sx For these reasons it is thought that the agency explanation of the debtor's adoption and consequent discharge is wrong and that the non - contractual explanation is to be preferred .sx However , that too is not free from difficulties .sx Its first challenge arises from a group of cases , usually encountered in the context of novation , which may appear to have assumed that , where the intervener attempts to discharge a debtor by promising the creditor to pay the debt in place of the debtor , the debtor can only be discharged if he makes himself a party to a tripartite contract with the creditor and intervener .sx It is submitted , however , that that is not the law , since each of these cases is explicable on the narrower ground that the intervener did not offer his promise rather than its performance , in satisfaction of the debt .sx Where it is clear that the promise is offered and accepted in satisfaction , nothing obstructs the application of the rule that the debtor can perfect his discharge by simple , non-contractual assent .sx The second difficulty arises from Snelling v. John Snelling & Co .sx In that case each of three brothers , who were directors of the company , promised the others that in the event of his resigning his directorship he would forfeit the debt owed to him by the company .sx When one brother resigned , he none the less claimed the debt .sx Ormrod J held , following Scruttons Ltd. v. Midland Silicones Ltd. and passing somewhat gingerly over Hirachand Punamchand v. Temple , that the company could not resist the action on its own initiative and would have failed had not the promisee-brothers come in to protect it .sx The case is not easily distinguishable from Hirachand unless on one ground .sx The debtor was the company .sx The creditor was the plaintiff brother who had resigned his directorship .sx The interveners were the brothers who had given good consideration for the debtor's discharge .sx The distinguishing factor was that at the time of the transaction the discharge was to operate , not immediately , but on the happening of a future event .sx The creditor's action was brought after the critical event had occurred .sx The problem which the case raises in the present context is whether the futurity of the discharge can account for the fact that even after the event had happened the debtor could not adopt and thus defend himself .sx One of us has argued that the element of futurity was sufficient to distinguish Hirachand .sx That view required that a transaction for the future discharge of a debtor should be construed as an executory contract which would remain executory even after the critical event had occurred .sx However , that now seems wrong , because , once the event has happened , the creditor has nothing more to do in order to execute his promise to discharge .sx If he has nothing more to do , his promise cannot still be executory , and the debtor should be able to perfect his discharge by assenting .sx If this argument be right , the factor which distinguishes Snelling from Hirachand carries no real difference , a result which compels us to argue that Snelling ought to have followed Hirachand and to have distinguished Midland Silicones .sx At this point a larger problem behind Snelling is revealed , for the question now becomes whether a rational distinction can be made between the Belshaw v. Bush group of cases and Midland Silicones .sx More particularly the question is whether the principle of Belshaw can be prevented from operating to allow strangers to take the benefit of exemption clauses to which they are not parties .sx The resolution of that very large problem could not be avoided here if the Belshaw cases were so few or equivocal as to be threatened by the cases on exemption clauses .sx Since that is not the case , we do not feel justified in digressing at great length from our central theme .sx It is enough to indicate two possible solutions .sx One is that the Belshaw cases ought indeed to be allowed to achieve the results which were reached in the Eurymedon only by stretching established doctrines of agency and formation of contract , should be allowed , that is , to provide the revolutionary short cut to a jus quaesitum tertio in this kind of case .sx The other is that the Belshaw cases should be dogmatically excluded from operating upon transactions to discharge obligations which have not yet arisen , a dogma which might none the less turn out to have as little foundation in principle as the rule which excludes the creation of a trust of a covenant to convey future property .sx ( b ) Non-volunteers Where the intervener is not a volunteer a distinction must be made between cases in which the voluntary character of his payment is negatived by reason of a secondary liability , whether personal or proprietary , itself not voluntarily incurred , and cases in which it is negatived by some other factor .sx Where the intervener is not a volunteer because of his secondary liability to make the payment , the debt is automatically discharged by his payment .sx This proposition cannot be explained by reference to the principles governing joint or joint and several liability because the secondary liability is generally not of that kind .sx Moreover , although the proposition can be supported from dicta which assume its truth , we have not been able to discover a case in which it has been fully considered .sx Its proof is therefore somewhat indirect and is as follows .sx In the case which the proposition supposes , the intervener can claim reimbursement from the debtor whether or not the debtor adopts the intervention .sx The success of the claim for reimbursement means that the debtor must have received a benefit by the payment .sx If the payment did not discharge the debt , the debtor would have received no benefit .sx The proposition thus comes down to this , that , where the intervener can claim reimbursement irrespective of the debtor's assent the debt must have been discharged by the intervener's payment .sx This can be further supported by a simple historical argument .sx The majority of claims to reimbursement were brought through the count for money paid .sx That count recited that the money had been paid at the request of the defendant .sx Where the intervener had paid by reason of a secondary liability , the courts would 'imply' a request on the part of the defendant , the debtor .sx By 'implying' that request the courts assimilated compulsory payments to payments expressly authorized by the debtor and thus made it unnecessary to advance any other explanation why a compulsory payment did , but a voluntary payment did not , automatically discharge the debt .sx Where the intervener is not a volunteer by reason of a factor other than a secondary liability , his payment does not discharge the debt .sx This proposition is subject to one insecure exception .sx The cases which allow the intervener reimbursement irrespective of the debtor's assent to the intervention do not , subject to the exception shortly to be mentioned , go beyond non-volunteers who are such because of secondary liability .sx That means that a non-volunteer who , for instance , is compelled to pay by duress or who pays by mistake cannot move straight to reimbursement from the debtor .sx And , if he cannot , although not a volunteer , the reason can only be that the debt is not discharged by his payment .sx The explanation is that such payments can be recovered from the creditor directly .sx Thus , slightly varying the facts of Astley v. Reynolds , if a pawnbroker will not release pledges unless the pledgor pays his brother's debt as well as his own , and the pledgor is thus constrained to pay in order to obtain his property , he may recover from the pawnbroker .sx It the pledgor chooses to leave the money with the pawnbroker , his election to do so , unlike his original payment , is a voluntary act and puts him back , quoad the debtor , in the position of a voluntary intervener .sx Applying the ordinary rule for volunteers , the debt will then be discharged when the debtor assents .sx The insecure exception relates to cases in which the intervener is constrained to act by necessity .sx It is arguable that he is then entitled to claim reimbursement from the debtor on the same basis as if he had paid under the constraint of a secondary liability .sx If that is so , it follows that , here too , the payment must automatically discharge the debt .sx A payment by necessity has in common with payments under the compulsion of secondary liability the fact that there is no question of immediate recovery from the creditor .sx If it is right that a payment by necessity is to be treated on the same ground as one made by reason of a secondary liability , there is some basis for saying that the true rule is that every non-voluntary payment of another's debt discharges the debt , unless the factor negativing the voluntary character of the payment is such as to allow the intervener an immediate right of recovery against the creditor .sx Answering the question whether the intervener's payment discharges the debtor's debt , we have now considered the case where the intervener is a volunteer and , with some inescapable anticipation of the discussion of reimbursement , the case where he is not .sx Before considering the intervener's restitutionary rights , it is necessary to recall that we have not considered one species of voluntary intervener , namely the intervener who pays under a secondary liability voluntarily incurred .sx This is the case of Owen v. Tate which will be considered in Part III .sx It need only be said at this point that it may be a case in which the intervener's payment , though voluntary , discharges the debt irrespective of the debtor's assent .sx II .sx Can the Intervener Recover ?sx ( a ) Volunteers .sx Where the intervener's payment was voluntary and the debtor by assenting chooses to perfect his discharge , the intervener cannot recover from the creditor but can claim reimbursement from the debtor provided that the debtor , when he assents , knows that the intervener , when he paid , did not intend to make him a gift of his discharge .sx The cases in which an assenting debtor comes under no obligation to reimburse the intervener are :sx ( i ) where he assents believing that the intervener acted donandi animo ; ( ii ) where - if such a case exists - the intervener's payment , although voluntary , automatically discharged the debt so that the debtor's assent is not the exercise of a choice whether or not to accept the benefit .sx The first proposition in this statement , namely that after the debtor's assent no action can be brought by the intervener to recover his payment from the creditor , requires no discussion .sx Once the debtor perfects his discharge the intervener has obtained all that he paid the creditor for .sx The proposition that the intervener can recover from the assenting debtor , except in the given cases , may seem heterodox at first sight , since there are very many cases which lay down that a voluntary payment may not be recovered .sx Those cases are , however , concerned with debtors who either have not assented or have assented within one of the two excepted cases set out above .sx Thus , Re Cleadon Trust Ltd. is a complex example of a type of case in which the voluntary intervener fails against a debtor who has never assented to the intervention and who , by resisting the claim for reimbursement , insists that he has not done so .sx