(1) As to analogy

In the forgoing pages a number of instances have been adduced in order to show the practices and institutions which have been approved on account of necessity which otherwise could not be permissible under the ordinal)' rules of the Sharia. This explains the legality of mudaraba, muzaraa, bay salam, etc. Contracts like bay’ salam may be adduced by some to support the existing practices of mark-up or murabaha etc., in which the sale takes place without possessing the goods actually being transferred and without the seller even having the capacity to deliver the goods. The legal maxim that determines the Sharia position of such contracts is contained in the rule * “What is proved to be opposed to qiyas (analogy) cannot form the basis of further (81) qiyas.”
In other words if a contract / transaction is legalized in defiance of the basic principles of the Sharia the legality of such transaction / contract shall not be adduced by way of analogy in support of a similar other contract. The contracts like mudaraba, bay' salam etc., which cannot be otherwise justified on the basis of analogy were allowed by the Prophet (peace be upon him). The legality of these transactions is of an exceptional character and hence it may not be cited as an evidence for supporting any other contracts.

(2) As to tricky device (hila)

Concluding the above discussion it seems relevant to make a hint at the technique of adopting a tricky device, hila, to circumvent a prohibition. The early fuqaha’ ingeniously devised some techniques in case somebody got in trouble for want of a legal solution to his problem. Some unscrupulous persons at later times misused the technique to tread upon the prohibited path. When the financiers in some cities refuse to extend loans to traders, the fuqaha’ devised the technique of buy-back (bay’ bi’l-wafa’) which implied an incomplete sale transaction. The goods sold by the trader was treated as a mortgage with the purchaser and returnable after the price paid by the purchaser was returned to him. The transaction of a sale authorized the purchaser to benefit from the purchased goods which could not be permissible in the case of direct mortgage. In a lawful device, an indirect, and sometimes doubtful technique is adopted to achieve a lawful object. But if the object itself is unlawful the technique, even though legally permissible, would be condemned. Even in the case of lawful device and object the point that needs to be remembered is that such devices' are resorted to only for individuals in order to get out of an impasse and are confmed to a very short period. Thus hila cannot be adopted as bases for the policies of states, the Muslim societies, and social institutions and become a regular modus operandi on a permanent basis.