specially concurring.
I concur in the result but disagree with the court’s reasoning. The majority opinion holds that a bailment relationship is created at the time the deposit bag enters the vault and that the exculpatory clause is ineffective beyond that point. It relies upon the inability of a bailee for hire to exculpate by contract its *1066liability for negligence where the bailee is "charged with a duty of public service.”
In the recent case of K-Lines, Inc. v. Roberts Motor Co.., 273 Or 242, 541 P2d 1378 (1975), we upheld a limitation of liability provision contained in a sales agreement between two business concerns. In so doing, we recognized that such agreements will be carefully scrutinized to see if a disparity of bargaining power exists. We held, however
"That one party may possess greater financial resources than the other is not proof that such a disparity of bargaining power exists that a limitation of liability provisions should be voided. *****
"When the parties are business concerns dealing in a commercial setting and entering into an unambiguous agreement with terms commonly used in commercial transactions, the contract will not be deemed a contract of adhesion in the absence of evidence of unusual circumstances.” (541 P2d at 1384.)
I recognize that night depositories serve an important need in the commercial world. But the merchants’ need for a business service is not an "unusual circumstances” which would justify depriving banks of their freedom to bargain for immunity from liability. It must be shown that the need is so compelling that the burden of filling it through some means other than the bank’s services would be inimical to societal interests. I do not regard the need for night depository service as having this compelling force. Safes of various sizes and complexities, capable of providing a relatively safe place of deposit on the merchants’ premises are available. These devices being available, it cannot be said that the need to use the bank’s night depository service is so great that the merchant cannot freely bargain with the bank. The parties, being in a position to bargain at arm’s length, should have a right to limit their liability within reasonable bounds. It may be that in some situations exculpatory agreements may be contracts of adhesion. Contrary to the majority’s dictum, however, the need for goods or *1067services is a key factor in determining whether the parties have voluntarily contracted and whether the resulting bargain is one of adhesion.1
Absent an adhesion contract or inequality of bargaining power, the rationale of the majority is that because the bank is a public entity, it cannot by contract limit its liability in a bailment relationship. This analysis is faulty.
I would concede that many of the functions of a bank are such that fairness to the customers requires strict scrutiny of the bank’s practices and the imposition of rules safeguarding the customers’ interests. In this respect, banks are "public” institutions and like other public bailees require greater control than purely private bailees. A part of that necessary control is the restriction on contracting against liability. But the need for such a restriction exists only where the service performed involves a special risk of loss to the customer, as in the case of a common carrier, or innkeeper,2 or where the public need for the service is great and the bailor is forced to bargain from a position of weakness, or where the bailee performs a service as a condition of a state sanctioned monopoly, as in the case of public utilities. The recognition of these exceptional liabilities on the part of bailees having a public character does not mean that in every contractual relationship the bailee must be restrained from limiting its liability. This was recognized in Central National Bank of Cleveland v. Gallagher; 13 Ohio App2d 115, 120, 234 NE2d 524, 528 (1968), where the court, in holding that an agreement protected the bank from liability for negligently paying the proceeds *1068of a savings account without presentment of the passbook, said:
"The question as to whether banks are to be regarded as ordinary citizens or as public service institutions, similar to public utilities, probably can be answered only by referring to the particular capacity in which banks are utilized.”3
Plaintiff can point to no unique risk of loss in a night depository arrangement that would compel the requirement of a special rule here as was created at common law for innkeepers and common carriers. In any event, it is unclear why, in the providing of a special service to a limited group of commercial customers, the bank is "charged with a duty of public service.”
The majority opinion does not explain what is necessary to constitute a "public bailee”; it seems to imply that any business with powerful bargaining strength qualifies. This factor should not be controlling unless the bailees bargaining advantage calls for the application of the principles of adhesion contracts and unconscionability, which, as I have pointed out, are not present here.
Further, the traditional rule which restricts the ability of public bailees to exculpate liability by contract should not be applied where the bailee does not know what he has been entrusted with. Normally, a bailee is aware of the circumstances surrounding the storage of bailed goods as well as the value of any entrusted articles. And usually, the bailor, after transferring possession of the goods to the bailee, is unaware of the disposition made of his property. For this reason, the bailor is entitled to a presumption of negligence on the part of the bailee if the goods are not *1069returned upon demand. And for the same reason, it may be unreasonable to allow a public bailee to disclaim responsibility for stored goods by an exculpatory clause. But where the bailee has no knowledge of the value or contents of stored goods or even that goods have been entrusted, as here, a different rule is called for. It is not unreasonable to allow in such a situation a contractual provision assigning the risk of loss to the bailor in order to guard against fictitious claims of delivery or loss from causes beyond the control of the bailee.
There is a point, however, at which the bank would have such control over the contents of the bag that it would no longer be permitted to assert the protection of the exculpatory clause. This would be either because the relationship of the bank and the depositor changed from a bailment to that of debtor and creditor respectively, or for the reason that the bank, having begun the processing of the deposit, is subject to the same rule of strict liability referred to above, which is imposed with respect to other bank practices required to safeguard the customer’s interest.4 The complaint is broad enough to permit proof of the bank’s control in the manner just mentioned. For this reason, I concur in the result reached by the majority opinion but I dissent from the reasoning.
Denecke, C. J. and Bryson, J., join in this opinion.Cf., Javins v. First Nat. Realty Corp., 428 F2d 1071, 1079 (D.C. Cir 1970).
A larger risk of loss through theft apparently contributed to the special treatment of innkeepers and common carriers at common law as contrasted with the ordinary negligence liability of a bailee. See Crapo v. Rockwell, 48 Misc Rep 1, 94 NYS 1122, 1123 (1905); Brown on Personal Property § 12.15, pp. 375-76 (3d ed 1975) (innkeeper liability); Beale, The Carrier’s Liability: Its History, 11 Harv L Rev 158 (1897), and Arterburn, The Early Liability of a Bailee, 25 Mich L Rev 479 (1927) (carriers).
See also, So. Pac. Co. v. Morrison-Knudsen Co., 216 Or 398, 419, 338 P2d 665 (1959), holding that "a railway company acting in a private role and not as a common carrier may legally contract for indemnification against the consequences of its own negligence not criminal or wanton in nature” and Georges v. Pacific Telephone and Telegraph Co., 184 F Supp 571 (D Or 1960) (limitation of liability from negligence in the preparation of advertisement in the yellow pages of a telephone directory upheld).
The ability of the bank to exculpate itself where it has actual possession and control over the contents of the bag was not decided in Irish & Swartz Stores v. First Nat’l. Bank, 220 Or 362, 377, 349 P2d 814 (1960). There we said, "Where the bailment contract provides that the deposit bag is to be opened out of the presence of the customer, a different rule may be called for * *