State v. Scherer

Some courts have held that when a defendant becomes incarcerated in another jurisdiction, "a surety who seeks to avoid the penalty of forfeiture must demonstrate that the defendant's incarceration was not foreseeable to the surety or preventable by it." In State v. Scherer, 108 Ohio App.3d 586, 591, 671 N.E.2d 545 (1995), the court explained: Because a surety bond is a contract, it is subject to the rules governing performance of contracts. According to the rule concerning impossibility of performance, a promisor may be excused from an obligation to the promisee when the performance promised is rendered impossible by operation of law, if that impossibility was not foreseeable to the promisor. The rule is founded on the theory that when the object of an agreement is forbidden by law, the promisor is excused from undertaking its accomplishment. Where the performance promised is only temporarily prohibited, the contract remains in force, though dormant, and when the legal impediment is removed the surety must perform on its undertaking. A criminal defendant who has been incarcerated by one jurisdiction cannot appear in the courts of another while that incarceration continues, absent extradition by the latter jurisdiction. While the defendant remains incarcerated, a surety who is obligated on a bail bond that obtained the defendant's release by the latter's jurisdiction may be excused from paying the penalty the bond requires because the object of the surety's promise, the defendant's appearance, is forbidden by law. However, the surety must demonstrate that the condition which rendered the defendant's appearance impossible was also unforeseeable prior to its occurrence. Whether any event is foreseeable is a question of fact determined from all the relevant facts and circumstances. Id.;