[Direct answer]First, we shall follow the provisions of the contract. According to Article 85 of the Civil Code of the People's Republic of China (effective January 1, 2021), the parties may agree on the amount of the penalty or the method of calculating the compensation for losses; if the agreed penalty is excessively high compared to the actual losses, the people's court or arbitration institution may, upon the request of the party, reduce it appropriately, and if it is lower than the losses, the party may request an increase. If the contract does not stipulate a penalty, the compensation for losses shall be based on the actual losses, which shall be equivalent to the losses caused by the breach of contract, including the benefits that could be obtained after the performance of the contract, but shall not exceed the losses that the breaching party could have foreseen or should have foreseen at the time of entering into the contract (Article 84). After the contract is rescinded, the validity of the penalty clause and the settlement and clearing clauses shall not be affected (Article 67), and the rescinding party may still claim the penalty and request the return of the payments already made. In the sale of commercial housing, the rescission of the purchase contract usually involves the handling of the loan contract together, with the developer assuming the responsibility for the return of the payments.

I. Problem Background and Typical Scenarios

After the termination of the house purchase contract, buyers and sellers often have disputes over the amount of the breach of contract penalty: the buyer believes that the seller should compensate for the long-term delay in handing over the house or refusal to perform the contract, while the seller requests a reduction on the grounds that the breach of contract penalty is too high. In practice, there are various ways to calculate the breach of contract penalty. Some stipulate that it shall be calculated at a few thousandths of a percent per day, some stipulate a fixed amount, and some only stipulate the refund of the deposit or the payment already made without specifying the breach of contract penalty separately. When handling such cases in Beijing, the court will first review the contract provisions, and then determine whether to adjust the penalty based on the actual losses, the degree of fault, and the performance of the contract. Understanding the calculation rules and adjustment standards of the breach of contract penalty can help buyers make reasonable claims and accurately assess the litigation expectations.

II. Key points of dispute

First, the calculation method and start and end dates of the breach of contract penalty specified in the contract. Second, how to request an adjustment when the breach of contract penalty is too high or too low. Third, the scope of actual losses and the burden of proof when there is no agreement. Fourth, whether the contract can be terminated and the breach of contract penalty and compensation can be claimed simultaneously. Fifth, whether the loan contract will be terminated simultaneously, and who will repay the remaining loan.

III. Professional analysis by Henglue Lawyers

Henglue Law Firm once represented a contract dispute involving the termination of a pre-sale contract for commercial housing and the simultaneous termination of a loan contract. In 2018, Ms. D signed a "Commercial Housing Sales Contract (Pre-sale)" with a real estate company to purchase a commercial property and paid the down payment. Subsequently, she signed a mortgage loan contract with a credit union. However, the developer failed to deliver the property on time for years and the project was suspended. Despite repeated promises, the developer still failed to fulfill its obligations. Ms. D entrusted Attorney Liu Donghua from our firm to represent her, claiming to terminate the contract and refund the purchase price and related fees based on the developer's fundamental breach of contract. The lawyer emphasized that the developer's delay in delivery constituted a fundamental breach of contract, rendering the contractual purpose impossible to achieve. Referring to Articles 20 and 21 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trials of Disputes over Commercial Housing Sales Contracts", the lawyer argued that the termination of the purchase contract should be accompanied by the termination of the loan contract, with the developer assuming responsibility for repaying the loan. At the same time, the lawyer calculated in detail the loss of use of funds and various fees paid, and put forward reasonable claims for breach of contract damages. The court fully supported the plaintiff's claims: terminating the pre-sale contract and the loan contract; requiring the developer to refund the down payment of over 260,000 yuan, the repaid principal and interest of over 150,000 yuan, and public maintenance funds, stamp duty, etc.; paying 50,000 yuan in breach of contract damages; and repaying the remaining principal and interest of the loan to the credit union, with the sole shareholder assuming joint and several liability. This case shows that claims for breach of contract penalties and damages should be based on contractual provisions and supported by actual losses. Claims that are too high or lack basis are often difficult to gain support. This case was handled by Beijing Henglue Law Firm. 恒略律师曾代理一起商品房预售合同解除、贷款合同一并解除的合同纠纷。客户D女士于二零一八年与某房地产公司签订《商品房买卖合同（预售）》，购买商铺并支付首付款，随后与信用社签订按揭贷款合同。开发商逾期交房多年，项目停工，经承诺仍未履行，客户D女士委托本所刘东华律师代理，以根本违约为核心主张解除合同、返还购房款及相关费用。律师重点论证开发商逾期交房构成根本违约，合同目的无法实现；依据《最高人民法院关于审理商品房买卖合同纠纷案件适用法律若干问题的解释》第二十条、第二十一条，主张解除购房合同的同时解除贷款合同，由开发商承担贷款返还责任；同时详细计算资金占用损失与已付各项费用，提出合理违约赔偿诉求。法院全面支持原告诉求：解除预售合同与借款合同；开发商返还首付款26万余元、已还贷款本息15万余元及公共维修基金、印花税等；支付违约金5万元；并向信用社偿还剩余贷款本息，唯一股东承担连带责任。本案说明，违约金与损失赔偿的主张应当以合同约定为基础、以实际损失为支撑，并通过完整举证让法院形成清晰的计算链条，过高或缺乏依据的主张往往难以获得支持。本案由北京恒略律师事务所代理。Liu DonghuaThe attorney (practice license number: 11101199911363364, subject to the document issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

Action list: First, check the provisions in the contract regarding the calculation of the breach of contract penalty and losses, and determine the calculation method and start and end dates; Second, organize payment vouchers, loan contracts, and repayment records, and calculate the funds occupied and actual losses; Third, preserve records of reminders, promises, and communications to prove the other party's breach of contract and the claimant's timely assertion of rights; Fourth, if the claimant intends to terminate the contract, they should also propose to return the purchase price, compensate for the breach of contract penalty, and propose a loan processing plan; Fifth, if the agreed breach of contract penalty is obviously too low or the other party's claim is too high, they should promptly request an adjustment and provide evidence. For matters involving real estate and construction, reference can be made to the relevant provisions.Real estate transactions and construction projectsAndSpecial servicesLegal basis: Articles 563, 567, 584, and 585 of the Civil Code of the People's Republic of China (effective January 1, 2021), and Articles 20 and 21 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trials of Disputes over Commercial Housing Sales Contracts. The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Reminder

Firstly, the liquidated damages shall be calculated in accordance with the agreement, but it is necessary to pay attention to whether the agreed amount is too high or too low and to claim adjustment in time. Secondly, the actual losses need to be supported by evidence, and the payment vouchers and loan records are the core materials. Thirdly, the termination of the contract does not affect the validity of the liquidated damages and settlement terms, and the two can be claimed together. Fourthly, the termination of the purchase and sale of commercial housing often involves the handling of the loan contract together, so it is necessary to plan the repayment and the subject of responsibility in advance. For matters involving real estate and construction, it can be handled through legal means.Property transactions and construction projectsWe provide a comprehensive solution for services, which includes contract review and the assessment of transaction risks.Business and contract disputes in enterprisesFor reference, please refer to the cases involving the return of purchase money and its enforcement.Creditor's rights and debts, and enforcementYou can consult us regarding loan and guarantee matters.Finance and cross-border affairs.

VI. Frequently Asked Questions

Q1: How is the breach of contract penalty calculated after the termination of the house purchase and sale contract?

It shall be determined in accordance with the amount or calculation method stipulated in the contract. Where there is no stipulation in the contract, the compensation shall be based on the actual losses, and the amount of compensation shall be equivalent to the losses caused by the breach of contract, but shall not exceed the scope of losses that the breaching party foresee or should have foreseen at the time of concluding the contract.

Q2: Can the agreed penalty for breach of contract be reduced if it's too high?

Yes. According to Article 85 of the Civil Code of the People's Republic of China (effective January 1, 2021), if the agreed upon penalty for breach of contract is excessively high compared to the actual losses caused, the party concerned may request the people's court or arbitration institution to reduce it appropriately; if it is lower than the actual losses, the party may request to increase it. The specific amount shall be measured based on the actual losses.

Q3: What should I do if there's no agreement on the penalty for breach of contract?

Claim compensation based on actual losses, including the loss of funds occupied by the paid purchase price, the interest on the loan that has already been generated, and the necessary expenses. It is necessary to provide payment receipts, loan contracts and repayment records, expense invoices, and other evidence to prove the existence and amount of the losses.

Q4: Can I still claim the breach of contract penalty after terminating the contract?

Yes. The termination of the contract does not affect the validity of the penalty clause and the settlement and cleanup clauses. When the terminating party claims the return of the purchase price, it can still claim the penalty or compensation for losses according to the contract. The two claims can be made concurrently, but the court will comprehensively review the reasonableness of the total amount.

Q5: Who will pay off the remaining loan after the commercial housing contract is terminated?

According to Articles 20 and 21 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trials of Disputes over Commercial Housing Sales Contracts, if the purchase contract is terminated due to the developer's reasons, the loan contract may be terminated simultaneously, and the developer shall bear the responsibility of returning the purchase loan. The buyer shall no longer continue to bear the remaining loan, and the specific provisions shall be subject to the court's judgment.

The above answer is based on the judicial practice in the Beijing area. The judicial interpretations in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, to avoid missing the statutory time limits. →Legal services for real estate transactions·Attorney Liu Donghua·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.