In O'Hayer v. de St. Aubin (30 AD2d 419, 293 N.Y.S.2d 147 [2d Dept 1968]), the court permitted the exoneration of an inter vivos trustee of acts and omissions that do not involve bad faith or reckless disregard to the interests of the beneficiaries. The rationale for this difference between the testamentary and inter vivos trust is said to be the nature of an inter vivos transaction and the contracting freedom of the settlor and trustee to define the scope of the latter's powers and liabilities. Whatever merit this logic may possess, the courts have always subjected language that operates in exoneration of fiduciaries' acts and omissions to very close scrutiny and there has been a noticeable limiting of the O'Hayer rule over the years (see e.g. Bauer v. Bauernschmidt, 187 A.D.2d 477, 589 N.Y.S.2d 582 [2d Dept 1992], where the court stated that such a clause was valid in inter vivos trusts "so long as there is some accountability, at least, to the settlor.") The court found in Bauer that the trustee acted in good faith and "with the requisite degree of diligence and prudence".