Why are Mu'awadha contracts strict and Tabarru' contracts more accommodating in Islamic Finance?

In this Saturday's lecture on Fiqh al-Mu'amalat and Islamic Finance, we moved to the chapter of Kafalah (guarantee and suretyship). Before lecturing on the intricacies of Kafalah, I touched upon the philosophy behind Mu'awadha and Tabarru' contracts, or commutative and non-commutative contracts.

Trading and exchanging takes place to fulfil mutual needs. God inspired humans to trade in order to fulfil mutual needs. Imagine a world without trading! Everyone would suffer due to not being able to meet their own basic neccessities and needs. Thus, commutative contracts are there to fulfil mutual Haajah (need) - both parties have a need in such a contract; one party needs the money whilst the other party needs the item. Since such contracts are based on fulfilling mutual needs, commutative contracts do not permit Jahalah (gross ambiguity), Gharar (gross uncertainty) and unfair clauses.. Needs should be met of both parties without any one of them being unjustly treated, enriched or subject to unfair terms. This prevents oppression of the needy counter-party. Commutative contracts (uqud mu'awadha) are based on an underlying principle known as Musaawaat. Musaawaat refers to symmetry between in the contracting parties in terms of rights, obligations and gain in the contract. It is somewhat similar to a level playing field. No party in a bilateral contract should have an upper hand or an unfair and unjustified advantage. Likewise, no party can gain at the expense of the other's loss. The Shariah promotes a level playing field for parties to the contract. Any term which unjustly favours one party or tips the balance in favour on one party defies the principle of Musaawaat.

On the other hand, non-commutative contracts like Hiba (gifting), Kafalah (suretyship), Rahn (collateral) and Hawalah (debt transfer) are not based on Haajah philosophically, rather they are based on Ihsan (benevolence) and Tabarru' (gratuitous offering). Any contract based on Ihsan and Tabarru' absorbs Jahalah (ambiguity), Gharar (gross uncertainty) and unfair clauses. Tabarru' contracts do not become voidable (Fasid) or irregular due to the presence of Jahalah, Gharar or unfair clauses. Why is this? The party initiating such a contract does not have a need where he might be oppressed or treated unjustly. For example, the guarantor does not have a personal need to guarantee, he does so out of his good will and grace. What about the guaranteed party? Well, allowing a guarantee with Jahalah and Gharar is better than no Kafalah at all; the guaranteed party does not have to give anything in return for such a facility. It is always in his favour to have a guarantee to assist him even if it has Jahalah and Gharar.

Thus, Mua'wadha contracts are there to fulfil mutual needs and the controls are tighter to prevent oppression of the counter-parties, whilst Tabarru' contracts are there for benevolence, grace and charitable actions, therefore the controls are eased and laxed to allow people to do more good than no good at all.