[Direct answer]In the Beijing area, the calculation of losses after the termination of a second-hand housing sales contract depends on the reason for termination and the breaching party. According to Article 566 of the Civil Code of the People's Republic of China (effective January 1, 2021), after the contract is terminated, the party that has not performed the obligations shall terminate the performance, and the party that has performed the obligations may request restoration of the original state or take other remedial measures, and has the right to claim compensation for losses. The losses typically include the loss of the housing price difference, the paid intermediary fees and taxes, the loan costs, and the reasonable expenses incurred in performing the contract; if the contract stipulates a breach of contract penalty, the party in compliance may claim the breach of contract penalty, and if the stipulated amount is too high or too low, the party may request an adjustment. When calculating the losses, a distinction should be made between direct losses and foreseeable benefits, and the rule of foreseeability should be followed, while the obligation to mitigate losses must be fulfilled. If the contract is terminated due to force majeure, the breaching party generally does not bear breach of contract liability. Therefore, it is necessary to first clarify the reason for termination and the attribution of responsibility.

1. Problem background and typical scenarios

There are many transactions and large amounts involved in second-hand housing transactions, and disputes over losses after the contract is rescinded are common. Typical scenarios include: the buyer breaching the contract and not purchasing the property, the seller confiscating the deposit or claiming breach-of-contract penalties; the seller breaching the contract and not selling the property, and the buyer claiming losses in the form of the price difference; the price of the property rising or falling, resulting in increased losses for one party; the actual expenses of intermediary fees, appraisal fees, and loan fees; significant disagreements between the parties over the scope and amount of losses; and how to reconcile the provisions of both the deposit and the breach-of-contract penalties in the contract. When handling such matters in the Beijing area, lawyers usually first determine the reason for the rescission and the breaching party, then calculate the various losses.Property sales and construction projectsIn business, the connection between the loss of price difference and the penalty for breach of contract is a common point of contention.

II. Key points of contention

Focus One: The reasons for termination and the determination of the breaching party. Focus Two: What items are included in the scope of losses. Focus Three: How to calculate and provide evidence for the loss of the housing price difference. Focus Four: Whether the breach of contract penalty and loss compensation can be used concurrently. Focus Five: Who should bear the already paid fees such as agency fees. Focus Six: The impact of the obligation of mitigation on the determination of losses. Focus Seven: The application relationship between the penalty for the deposit and the breach of contract penalty.

III. Professional analysis by Henglue Law Firm

Henglue Law Firm advises that the calculation of losses should be based on a clear determination of liability. Firstly, it is necessary to determine whether the termination is due to a breach of contract by one party, mutual agreement between the parties, or force majeure. The liability for breach of contract is generally borne by the breaching party. Secondly, the scope of losses typically includes direct losses such as paid agency fees, taxes, and loan-related expenses, as well as the loss of potential profits due to changes in housing prices, which requires proof of its foreseeability and reasonableness. Thirdly, the loss of price difference can be referenced by the difference between the contract price and the market price at the time of termination. If necessary, evidence can be provided through appraisal or the transaction prices of similar properties in the same period. Fourthly, if the contract stipulates a breach of contract penalty, the party in compliance may claim the penalty. If the penalty is deemed too high or too low, an adjustment may be requested. Generally, the penalty and the compensation for losses cannot be claimed for the same loss simultaneously. Fifthly, the party in compliance has an obligation to mitigate losses. If the party fails to stop losses in a timely manner and causes the expansion of losses, the expanded portion may be difficult to obtain compensation for. Taking a housing purchase dispute case handled by Attorney Tian Jiaoyan of our firm as an example: The buyer claimed the breach of contract liability during the delay period in accordance with the contract. The attorney clarified the facts of the breach and the period of losses by reviewing the contract provisions, payment receipts, and delivery time, which supported the claim for the breach of contract penalty. This case was handled by Beijing Henglue Law Firm.Tian JiayanThe lawyer (practice license number: 11101202111381309, subject to the document issued by the judicial administrative organ) acts as the agent. This case shows that quantifying the facts of breach of contract and the period of loss is the key to increasing the probability of winning support for one's claim.

IV. Practical suggestions and legal basis

Action suggestions: First, clarify the reasons for the termination and the breaching party, and document the termination notice and the delivery receipt; Second, categorize the losses and distinguish between direct losses and foreseeable benefits; Third, collect evidence of the loss of the price difference or the transaction price; Fourth, choose the more favorable claim between the breach of contract penalty and the compensation for losses; Fifth, stop the loss in time and keep the evidence of mitigation. Legal basis: Articles 566, 577, 584, 585, and 587 of the Civil Code of the People's Republic of China (effective January 1, 2021). For real estate disputes, please refer to the relevant provisions.Property sales and construction projectsThe specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglue Law Firm's Advice

Firstly, the calculation of losses is based on the attribution of liability. Secondly, direct losses and potential benefits should be accounted for separately. Thirdly, the loss of price difference needs to be proven by evaluation or transaction price. Fourthly, it is not appropriate to claim both the breach of contract penalty and the compensation for losses. Fifthly, the party in breach of contract has the obligation to mitigate the losses. For property disputes, it can be resolved through legal means.Real estate transactions and construction projectsConsultation. The rules on statute of limitations and evidence shall be subject to the currently effective laws, regulations, and judicial rulings.

VI. Frequently Asked Questions

Q1: What losses can be claimed after the termination of a second-hand housing contract?

It usually includes direct losses such as paid agency fees, taxes, and loan-related expenses, as well as potential benefits such as the loss of price differences due to changes in housing prices. If the contract stipulates a breach of contract penalty, the party can claim the breach of contract penalty. The specific scope needs to be determined based on the reasons for the termination, the breaching party, and the evidence provided.

Q2: If the house price has risen and the seller breaches the contract, how should the loss of the price difference be calculated?

Generally, the calculation can be based on the difference between the contractually agreed price and the market price at the time of termination. This can be assessed by a real estate appraisal agency, or the transaction price of similar properties in the same neighborhood and during the same period can be submitted as a reference. The loss of the price difference constitutes a foreseeable benefit, and its foreseeability and reasonableness need to be proven.

Q3: Can I demand both the penalty for breach of contract and compensation for losses at the same time?

Generally, a party cannot make a claim for the same loss twice. The parties may agree on a penalty, and the party in breach of contract may claim the penalty; if the penalty is insufficient to compensate for the loss, the party may request an increase; conversely, if the penalty is too high, the party may request a reduction. The party should choose the more favorable claim method based on the specific losses.

Q4: What should I do if I've paid a deposit and agreed on a penalty clause for breach of contract?

It depends on the contract provisions and the parties' choice. The nature of the deposit and the penalty for breach of contract are different. If the party receiving the deposit breaches the contract, it shall return the deposit double the amount; if the party paying the deposit breaches the contract, it has no right to demand the return of the deposit. If the parties have agreed on both the deposit and the penalty for breach of contract, the non-breaching party can usually only choose one to claim, and cannot use them concurrently.

Q5: If the buyer breaches the contract, how much compensation can the seller claim?

The seller can generally claim breach of contract penalties or forfeiture of the deposit, and claim compensation for actual losses, such as the loss of the price difference when the house price falls and the reasonable expenses already incurred. If the losses exceed the deposit or breach of contract penalties, the seller can request an increase under the adjustment rules. The specific amount will be determined by the arbitrator based on the evidence. For more details, please refer to the relevant provisions.Creditor's rights and debts, and enforcement.

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

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Legal services for the purchase and sale of real estate·Attorney Tian Jiayan·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open 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.