[Direct answer]In the Beijing area, if you, as the buyer, fail to make payments to the seller on time due to the bank's slow loan disbursement and are considered "delinquent", the responsibility may not lie with you. If the contract stipulates that the payment shall be made by mortgage loan and you have applied for it in a timely manner, the bank's delay in loan disbursement is due to third-party reasons. You can claim that you have fulfilled your reasonable obligations and the breach of contract is not due to your own fault, and request a reduction or exemption of the breach of contract liability or an extension of the performance period. According to Article 590 of the Civil Code of the People's Republic of China, the party may be partially or entirely exempted from liability for breach of contract due to force majeure or third-party reasons, but must notify the other party in a timely manner and mitigate the losses. The key lies in the contract's provisions on payment conditions, grace periods, and loan risks. It is recommended to immediately notify the seller and the bank in writing and fix the evidence of the delay in loan disbursement. For more details, please refer to the following link:Legal services for real estate transactions and construction projects.

I. Problem background and typical scenarios

In the mortgage transactions of second-hand and new houses, buyers often agree that "the bank will disburse the loan within a certain number of days after the transfer of ownership", but the bank may delay the disbursement due to quota, approval, or policy reasons, resulting in the buyer's failure to make payment on time to the seller. Typical scenarios include: the buyer has completed the mortgage and transfer procedures, but the bank has not disbursed the loan for several months. The seller claims that the buyer is in breach of contract and demands breach of contract damages according to the contract; the sales contract stipulates that "the bank disburses the loan" as the buyer's payment obligation, without stipulating exemption from liability; and the buyer fails to cooperate with the bank in face-to-face signing and supplementing documents in a timely manner, causing delays on their own side. Many buyers mistakenly believe that "it's the bank's fault for not disbursing the loan, so it's not my fault", but they fail to set loan risk allocation clauses in the contract, thus passively bearing the responsibility. For cases involving loan and contract linkage, the parties may refer to the following provisions:Business and contract dispute services for enterprisesClarify.

II. Key points of dispute

There are three main points of contention. Firstly, the subject of the payment obligation and the allocation of risks: If the contract stipulates that "the buyer is responsible for paying the purchase price", whether the bank's slow loan disbursement constitutes a breach of contract by the buyer depends on whether the buyer applies for the loan, cooperates with the bank, and urges the bank to disburse the loan in a timely manner. Secondly, the grounds for mitigating or exempting liability: Whether the buyer can claim mitigation or exemption due to reasons attributable to the third party (the bank) or to causes beyond their control requires proof that they have made reasonable efforts. Thirdly, the determination of the seller's losses: Whether the breach-of-contract penalties and interest claimed by the seller are reasonable and whether they exceed the actual losses. For the determination of breach of contract, reference can be made to the relevant provisions of the contract and applicable laws and regulations.Creditor-debtor relations and enforcement case servicesEvaluate the boundaries of responsibility.

III. Professional analysis by Hengluo Lawyers

The commercial housing pre-sale contract case handled by Attorney Tian Jia Yan of our firm, although targeting the delayed delivery of the house, also reflects the case-handling philosophy of "clarifying the cause and effect of the breach of contract and locking in the performance milestones", which is of reference value for disputes over slow bank loan disbursement. On April 30, 2021, Zhang Quan signed the "Beijing Commercial Housing Pre-sale Contract" with Beijing A Real Estate Development Co., Ltd. to purchase a house in a certain residential area, with a floor area of 99.41 square meters and a total price of 6,841,972 yuan. It was agreed that the house would be delivered before June 15, 2023. The supplementary agreement granted a 90-day grace period. After the expiration of the grace period, the buyer would pay a breach of contract penalty of 0.01% of the total price per day. However, A Company did not deliver the house until March 5, 2024, nearly nine months after the due date. Zhang Quan entrusted Beijing Henglu Law Firm to handle the case.Tian JiayanThe lawyer filed a lawsuit, demanding the payment of a penalty for late delivery of the house amounting to 118,366.12 yuan. The court ultimately adopted the lawyer's opinion that "the grace period should be strictly applied according to the contract, and the pandemic does not constitute force majeure", and ruled that Company A should pay the full penalty. This case was handled by Beijing Henglu Law FirmTian JiayanThe attorney (practice license number: 11101202111381309, subject to the document issued by the judicial administrative organ) acts as the agent. Note for this type of case: In breach of contract disputes, who breached the contract first and the causality are the core of responsibility allocation. It is also necessary to accurately fix the timeline for cases involving slow loan disbursement by banks.

IV. Practical suggestions and legal basis

The legal basis is Article 590 of the Civil Code of the People's Republic of China (effective January 1, 2021) (breach of contract due to the third party's reasons), Article 577 (liability for breach of contract), Article 591 (rule of mitigation of damages), and Article 563 (statutory right of rescission). Practical advice: When signing the contract, make it clear that the payment is subject to the loan being granted, and stipulate exemption from liability or termination clauses in the event of loan failure or delay; submit loan materials and cooperate with on-site signing in a timely manner, and retain proof of the bank's acceptance and delay; immediately notify the seller in writing of the loan delay and send a copy to the bank, and take the initiative to mitigate damages; negotiate to change the payment period or make installment payments; if negotiation fails, you can claim to reduce or waive the breach of contract penalty or rescind the contract. In the event of loan contract disputes, you can refer to the following provisions:Financial capital and cross-border services involving foreign countriesAnalysis and judgment.

5. Hengluo Law Firm's Reminder

The slow loan disbursement by the bank does not necessarily mean that you will default. The key lies in "whether you have done your best and how the contract allocates the loan risk". At the signing stage, you should include clauses exempting you from liability for loan delays and allowing you to terminate the contract. Don't wait until the loan disbursement is stalled to take remedial measures. During the performance of the contract, you must cooperate with the bank in a timely manner, fix the evidence of the delay, and send a letter to the seller to explain the situation to avoid being deemed as allowing the default. If the seller has claimed a high penalty for breach of contract, first check the actual losses and the contractual ratio, and request an adjustment for the excessive part in accordance with the law. In the case of complex multi-party relationships, you can seek help from a lawyer.Special services and other case servicesDevelop a response plan to prevent being held passively accountable.

VI. Frequently Asked Questions

Q1: If the bank's slow loan disbursement results in my overdue payment, can I be exempt from the liability for breach of contract?

The exemption depends on the contractual provisions and your performance, rather than the outcome commitment. If the contract stipulates that the loan disbursement is a prerequisite for payment, and you have applied for and cooperated with the on-site signing of supplementary documents in a timely manner, the bank's delay is a third-party cause that is not attributable to you, and you can claim exemption from breach of contract liability or postponement of performance. If the contract stipulates that "the buyer is responsible for payment" and you have also cooperated with the delay, the scope of exemption is limited. The court usually reviews whether you have made reasonable efforts and whether you have promptly notified the reduction of losses. It is recommended to fix the proof of the bank's delay and communication records, and then evaluate the possibility of exemption. Do not easily believe in the claim that you will definitely win the case.

Q2: If the bank is slow in disbursing the loan and the seller files a claim against me, what evidence do I need to prepare?

The core evidence includes: the sales contract and supplementary agreement (proving the payment conditions and the allocation of loan risks), the loan application materials and the bank's acceptance receipt (proving that you have applied for the loan in a timely manner), the communication records with the bank (urging for loan disbursement, explaining the tight credit quota), the proof of the bank's delayed loan disbursement or the transaction records, the records of your cooperation in completing the face-to-face signing, and the written notice to the seller explaining the situation. The organization of the evidence revolves around the four points of "having applied - having cooperated - the bank's delay - having notified of the mitigation". The more complete the materials are, the more they can prove that the breach of contract is not due to the buyer's fault, thus reducing the risk of compensation.

Q3: How much will it cost in attorney's fees and litigation expenses to deal with slow loan disbursement and breach of contract claims by banks?

The litigation fees are calculated according to the "Measures for the Payment of Litigation Costs" based on the amount of the litigation subject (usually the amount of the breach of contract damages claimed), and are borne by the losing party. If you actively sue to confirm exemption from liability, the fees will be calculated based on the amount of the claim. The attorney's fees are related to the complexity of the case, the amount of the subject, and the attorney's qualifications. They are charged on a per-case, hourly, or percentage basis of the subject amount, subject to the terms of the contract. There is no unified government pricing for these fees. It is recommended to control costs through letters and negotiations in the early stages of the dispute, calculate the amount of the breach of contract damages and the fees before litigation, and request adjustments to the obviously excessive claims in accordance with the law. It is also advisable to choose a rational path to protect one's rights.

Q4: How long does it usually take to resolve default disputes caused by slow loan disbursement by banks?

The outcome of the negotiation and letter-sending stage usually becomes clear within a few weeks. If the case proceeds to litigation, the first-instance ordinary procedure will be concluded within six months and the summary procedure within three months. For cases with clear facts, the summary procedure is often applied. If the seller appeals, the second-instance procedure usually takes three months. After the judgment, the implementation or enforcement period depends on the cooperation of the other party. Overall, simple disputes can be resolved through negotiation and lawyer's letters within a month, while litigation often takes several months to half a year. It is recommended to communicate in writing and fix evidence at the early stage of loan delay to avoid prolonging the dispute and wasting more time.

Q5: If the bank's loan approval process is slow and I might be deemed as being overdue, what should I do first?

Here are the four steps recommended: 1. Immediately organize all records related to the loan application, the bank's acceptance, and the supplementary materials provided for the on-site verification to prove that you are not at fault. 2. Send a written notice to the bank urging them to disburse the loan and request an explanation for the delay, while collecting evidence of the third-party causes. 3. Simultaneously send a letter to the seller explaining that the delay in loan disbursement is not due to your breach of contract. Propose to postpone the payment or modify the performance period to voluntarily mitigate losses. 4. If the seller has already issued a breach of contract notice or filed a claim, first verify the contract terms and actual losses. Request an adjustment to the excessive breach of contract penalties in accordance with the law. If no agreement is reached through negotiation, hire a lawyer to file a lawsuit. Throughout the process, retain all legal documents and communication records to clearly define the responsibilities and liabilities.

The above answer is based on the judicial practice in the Beijing area. The judicial interpretation 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, in order to avoid missing the statutory time limits. →Legal services for the purchase and sale of real estate·Attorney Tian Jiayan·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on current laws and regulations and publicly available adjudication rules, and is provided for general reference only. It does not constitute formal legal advice for 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.