[Direct answer]To prove the other party's breach of contract in a second-hand housing transaction, the key is to establish an evidence chain consisting of "contractual provisions + performance certificates + facts of breach of contract + records of reminders": the written contract and supplementary agreements specify obligations and deadlines such as payment, house delivery, household registration transfer, and title transfer; payment records and house handover receipts prove that the buyer has fulfilled their obligations according to the contract; WeChat messages, text messages, and written reminders fix the facts and time points of the other party's breach of contract. According to Article 577 of the Civil Code of the People's Republic of China, if a party fails to perform its contractual obligations or performs them in a manner inconsistent with the contract, it shall bear contractual liabilities such as continuing to perform the contract, taking remedial measures, or compensating for losses. If no agreement can be reached through negotiation, the buyer should promptly file a lawsuit to avoid the expansion of losses and the loss of evidence. For more details, please refer to the following link:Legal services for real estate transactions and construction projectsAndBeijing Henglue Law Firm.

1. Problem background and typical scenarios

The transaction cycle of second-hand houses is long with many stages, and breaches of contract are relatively common: the seller fails to cooperate with the transfer of ownership after receiving the payment, delays in transferring the household registration as agreed, increases the price of the house at the last minute and breaches the contract, or even sells the same house to two different buyers; the buyer fails to make payment on time or fails to obtain the loan approval on schedule; for those who purchase pre-sale commercial housing, they may also encounter the developer's delay in delivering the house or refusal to pay the breach of contract damages. After the breach of contract occurs, the other party often defends himself with reasons such as "no agreement", "already fulfilled the obligation", and "force majeure". At this time, whether the party can provide complete evidence directly determines the direction of the case. In practice, many parties are not unreasonable, but they fail to note the purpose of the payment, only verbally urge the other party to fulfill the obligation, and do not include key commitments in the contract, which results in the inability to reconstruct the facts of the breach of contract and makes it difficult to protect their legitimate rights and interests.

II. Key points of contention

  • Can the fact of breach of contract be determined? Whether there is a written agreement on obligations and deadlines, whether the party itself has performed its obligations in accordance with the agreement first, and whether the evidence of the other party's non-performance can corroborate each other. A single piece of evidence is often not enough for the court to form a conviction.
  • The amount of losses and penalties: How to prove the actual losses, and when the agreed penalty is excessively higher or lower than the losses, it will be adjusted (Article 585 of the Civil Code of the People's Republic of China). The loss of expected benefits is also subject to the restriction of "foreseeability".
  • Notification and termination timing: Which breach of contract situations require prior notification before terminating the contract, and how is the exercise period of the right of termination calculated? Missing the timing may result in only being able to continue to perform the contract and not being able to exit the transaction.

III. Professional analysis by Henglue Law Firm

The first case involved a case of late household registration transfer. In July 2015, Wang * purchased a house owned by Li * through an intermediary. The contract documents and supplementary agreements stipulated that Li * should transfer her household registration within a certain period after the transfer of ownership. Wang * paid a deposit and various installment payments totaling 4.8 million yuan, and the transfer of ownership was completed in November of the same year. However, Li * never transferred her son's household registration, which directly affected the resale price of the house for Wang *. After repeatedly urging Li * without success, Wang * entrusted Henglue Law Firm to sue her. The court ruled that Li *'s failure to transfer the household registration constituted a breach of contract. Based on the actual losses, taking into account the performance of the contract and the degree of the parties' faults, the court awarded Li * a compensation of 100,000 yuan for the breach of contract for late household registration transfer. This case shows that the obligation to transfer the household registration must be included in the contract and a breach of contract penalty must be stipulated. It is necessary to keep complete records of the payment and transfer of ownership at each stage.

The second case involved a developer's delay in handing over the property. In April 2021, Wang * signed a pre-sale contract with a Beijing real estate company for a total price of over 6.84 million yuan, with an agreed delivery date of June 15, 2023. The supplementary agreement granted a 90-day grace period, after which the developer would pay a penalty of 0.01% of the total price per day. However, the developer did not notify Wang * to move in until March 2024, a delay of nearly nine months. The developer claimed force majeure exemption from liability due to the pandemic. The court held that the pandemic was already a normal occurrence at the time of contract signing and should have been foreseen by the developer, thus not constituting force majeure. The court ordered the developer to pay a penalty of 118,366.12 yuan and bear the litigation costs. To prove the breach of contract, it is essential to match the agreed delivery time, grace period, and penalty standard with the actual delivery time, so that the facts of the breach of contract are clear at a glance. For complex disputes involving double sales of the same property and the validity of the contract, it is also necessary to take these factors into account when making a judgment.Business and contract dispute services for enterprisesEvaluate the plan.

IV. Practical suggestions and legal basis

At the legal basis level: Article 509 of the Civil Code of the People's Republic of China requires the parties to fully perform their contractual obligations; Article 577 stipulates the forms of breach of contract liability; Article 584 clearly states that the amount of compensation for losses shall be equivalent to the losses caused by the breach of contract, including the benefits that could have been obtained after the performance of the contract, but shall not exceed the losses that the breaching party foresaw or should have foreseen at the time of concluding the contract; Article 585 stipulates the agreement on the breach of contract penalty and judicial adjustment; Article 588 clearly states that if the parties have agreed on both the breach of contract penalty and the deposit, the party in breach of contract may choose to apply either one of them. At the practical operation level: First, at the contract signing stage, the obligations such as household registration transfer, house delivery, and title transfer shall be written into the contract item by item; Second, at the performance stage, every node shall be documented, and the payment shall be marked with its purpose, and the house delivery shall be signed with the handover form; Third, if a breach of contract is found, a written reminder shall be sent first and the delivery certificate shall be preserved, which lays a good foundation for the termination of the reminder and the calculation of the liability for delay; Fourth, if the other party refuses to perform after the judgment, the application for enforcement within the statutory time limit for enforcement application may be made, which can be combined with the above measures to ensure the effective protection of the legitimate rights and interests of the parties involved in the transaction. 法律依据层面：《中华人民共和国民法典》第五百零九条要求当事人全面履行合同义务；第五百七十七条规定违约责任形式；第五百八十四条明确损失赔偿额相当于因违约造成的损失，包括合同履行后可以获得的利益，但不得超过违约方订立合同时预见到或应当预见到的损失；第五百八十五条规定违约金的约定与司法调整；第五百八十八条明确既约定违约金又约定定金的，守约方可以选择适用其一。 实务操作层面：一是签约阶段将户口迁移、房屋交付、过户等义务与违约金逐项写入合同；二是履约阶段每个节点留痕，付款注明用途、房屋交付签署交接单；三是发现违约先发书面催告并保留送达凭证，为催告解除与计算迟延责任打好基础；四是判决后对方拒不履行的，在法定申请执行时效内申请强制执行，可结合Creditor-debtor relations and enforcement case servicesAdvance.

5. Henglu Law Firm's Reminder

The outcome of disputes over breaches of contract for second-hand houses is often determined before litigation: whether the contract was written, whether evidence was preserved, and whether a reminder was made. Oral promises and casual chats on WeChat have limited probative value. Key obligations must be set out in written terms. If you discover signs of the other party's breach of contract, you should immediately fix the evidence and assess whether to demand continued performance or terminate the contract and seek compensation. When claiming breach of contract penalties, you should simultaneously prepare evidence of actual losses to avoid having the amount reduced due to being too high. In the above-mentioned cases of overdue household registration and overdue house delivery, the purchasers all obtained court support based on complete chains of evidence. Among them, the case of the developer's overdue house delivery was handled by Beijing Henglu Law Firm.Tian JiayanThe attorney (practice certificate number: 11101202111381309, subject to the certificate issued by the judicial administrative organ) acts as the agent.

Q1: If there is no paper contract, only WeChat chat records and transfer records, can they prove that the other party breached the contract?

This can be claimed, but the difficulty of proof will obviously increase. Contracts can be concluded in written, oral, or other forms. WeChat chat records are electronic data. When combined with transfer records, they can reflect the transaction content and performance. The court can use this to determine the contractual relationship and related agreements. However, given the large amount of second-hand housing transactions, when there are only chat records, key clauses such as the location of the house, the price, and the obligations of handing over the house and transferring ownership are prone to disputes. It is recommended to simultaneously retrieve the online signing and filing contract and the signing documents retained by the intermediary to supplement the evidence; when important commitments are involved in daily communication, try to get the other party to confirm them explicitly in WeChat to form a complete and traceable record chain.

Q2: The seller verbally agreed to transfer the household registration, but it wasn't written in the contract. Can I still hold them accountable for this?

It's difficult to claim breach of contract liability based solely on verbal promises. Moving out of the household registration is not a matter that the court can enforce, so the contractual provisions and the penalty clause are almost the only means of recourse. For transactions that have already taken place, you can try to sign a supplementary agreement with the seller to specify the deadline for moving out and the liability for breach of contract. If the other party refuses to cooperate and causes actual losses, you can sue for compensation, but you need to prove the causal relationship between the losses and the failure to move out the household registration. For future house purchases, it is recommended to check the household registration situation at the local police station before signing the contract, and to set aside a portion of the final payment as a deposit for moving out the household registration. After verifying that the registration has been successfully moved out, the deposit will be refunded.

Q3: Can the breach of contract penalty and the deposit be claimed together?

This cannot be claimed simultaneously. According to Article 588 of the Civil Code of the People's Republic of China, if both a penalty for breach of contract and a deposit are stipulated, the party in breach of contract may choose to apply either the penalty for breach of contract or the deposit clause, but only one of them can be chosen. When making the choice, the two amounts can be compared: if the deposit is insufficient to compensate for the actual losses, the party can also request compensation for the losses exceeding the deposit; if the stipulated penalty for breach of contract is lower than the losses caused, the party can also request the court to increase it. After making the choice, the party cannot change its mind. Before making the claim, the party should prepare sufficient payment receipts and evidence of losses, and choose the path that is more beneficial to itself between the penalty for breach of contract and the deposit.

Q4: Is it necessary to send a reminder letter before filing a lawsuit?

In most cases, it is strongly recommended. The role of a reminder is threefold: First, it fixes the fact and starting point of the other party's breach of contract, providing a basis for calculating the delay in breach of contract penalty; Second, according to Article 563 of the Civil Code of the People's Republic of China, if the other party delays in performing the main obligation and fails to perform within a reasonable period after being reminded, the party in compliance may terminate the contract; Third, it presents an overall litigation image of the party in compliance and the other party's breach of contract. It is advisable to send the reminder by EMS or other verifiable means and keep the delivery note and its content. For those sent via WeChat, the other party should be required to confirm receipt to avoid disputes over the delivery process, which may affect the determination of the effectiveness of the reminder.

Q5: What should I do if the other party still refuses to pay the breach of contract penalty after winning the lawsuit?

You can apply to the court for enforcement. According to the provisions of the Civil Procedure Law of the People's Republic of China, the period for applying for enforcement is two years, starting from the date of the expiration of the performance period specified in the judgment. If the application for enforcement is overdue, the right to apply for enforcement may be lost. During the enforcement stage, you should try to provide clues to the other party's property, such as real estate, vehicles, bank accounts, online payment accounts, etc. The court can inquire into, freeze, and transfer their deposits, and seize and auction their property. If the other party is able to perform but refuses to do so, they may also be included in the list of dishonest people and be subject to restrictions on high-consumption activities. Second-hand house sellers often have assets such as real estate, and the enforcement rate is relatively high. The key is to apply for enforcement as soon as possible and keep track of the clues to the property.

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