In the process of drafting and reviewing the lease, lawyers often encounter such clauses: if the lessee unilaterally terminates the contract, it should compensate the lessor for a loss of 6.5438 million yuan. So, is this provision of huge liquidated damages effective? Can the lessor require the lessee to bear the liquidated damages in full accordance with this agreement? If the lessee claims that the liquidated damages are too high and asks for relief, which part of the losses will the court support the lessor? This paper will discuss and answer the above questions through several cases tried by courts at all levels in Beijing.
Referee points
If the lessee's fundamental breach of contract leads to the forced termination of the house lease contract, and the lessor requests the lessee to compensate for the actual losses such as rent during the vacant period of the house, it can support it, except as otherwise agreed in the contract. If the specific amount of the loss cannot be determined, it can be presumed as the rental loss during the idle period of the leased house or the turnover period of the replacement house, but the longest period shall generally not exceed six months.
Brief introduction of the case
1.20 15, 1 In June, the printing materials company signed a house lease contract with Baozekang Hospital, stipulating that the printing materials company would lease a house in Xicheng District of Beijing to Baozekang Hospital as office space. The lease term is from February 9, 20 15 to February 8, 20 18. Among them, rent is free from February 9, 20 15 to May 8, 20 15, and the quarterly rent is 3 16909 yuan.
2.2065438+2006+65438+On June 5, 2006, Baozekang Hospital submitted an application for leaseback to the printing materials company, the contents of which were as follows: "Our company decided not to continue renting the office space on the second floor of your building due to changes in business conditions, and hereby applied for leaseback." Because Baozekang Hospital has clearly stated that it will no longer perform its contractual obligations, the printing materials company agreed to this and the contract was terminated on the same day.
Three. 2065438+On June 6, 2006, Baozekang Hospital moved out of the house involved, leaving some office supplies at the scene.
Four. On August 20 16, the printing materials company signed a house lease contract with Yinglipu Company, an outsider, to lease the house involved to the latter. The lease term of the house is from September 20 16 to September 20 17.
5. The printing materials company filed a lawsuit with the court, requesting: 1, and ordered Baozekang Hospital to pay its unpaid house rent of 456 134.77 yuan; 2. Order Baozekang Hospital to pay the liquidated damages for delayed payment of rent, which is based on 456 134.77 and paid at the rate of 20 15 1 14 to the defendant's actual payment date, which is four times the loan interest rate of China People's Bank for the same period; 3. The hospital was ordered to compensate the printing materials company for the loss of vacant houses for three months by 3 16909 yuan.
An intransitive verb: 1 written by the people's court of Xicheng District, Beijing. Baozekang Hospital paid 456 134.77 yuan in rent owed to the printing materials company; 2. Baozekang Hospital's liquidated damages for late payment of rent are based on 45,665,438+034.77, and shall be paid at the rate of 2065,438+05,165,438+04, the loan interest rate of China People's Bank for the same period; 3. Baozekang Hospital compensated the printing materials company 1.5 months for the loss of vacant houses 158454 yuan.
Referee's score
On the issue of compensation for damages caused by the vacant house for three months, the court held that the lessee's fundamental breach of contract led to the forced termination of the house lease contract, and the lessor could support it if it asked the lessee to compensate for the actual losses such as rent during the vacant house. According to the plaintiff's statement in this case, the defendant Baozekang Hospital emptied the house on June 6th, 20 16, but because Baozekang Hospital left some garbage in the house, the plaintiff cleared it on June 6th, 20 16, which should be regarded as the next day. In view of the fact that the house involved was in good condition when it was returned and there was no obstacle to renting, the plaintiff could rent the house involved normally. Considering the impact on the housing rental market around the Spring Festival, the court presumed that the reasonable period for the plaintiff's house to be vacant was 20 16 15+00 to 20 13 1. Accordingly, the court ordered the defendant to compensate the plaintiff for the loss of rent during the idle period of 1.5 months.
In addition, regarding the plaintiff's request for the defendant to pay the unpaid rent penalty according to the standard of 4 times the loan interest rate of the People's Bank of China for the same period, the court considered that the plaintiff also asked the defendant to pay the rent loss during the vacant period of the above-mentioned house, so it deducted the standard of liquidated damages to the standard of 2 times the loan interest rate of the People's Bank of China for the same period as appropriate.
Relevant laws and regulations
The Supreme People's Court's explanation on some application problems (2)
Article 29 If the parties claim that the agreed liquidated damages are too high and request an appropriate reduction, the people's court shall, according to the actual losses, comprehensively consider the performance of the contract, the degree of fault of the parties, the expected interests and other comprehensive factors, and make a ruling after weighing according to the principles of fairness, honesty and credibility.
If the liquidated damages agreed by the parties exceed 30% of the losses caused, it can generally be regarded as "losses caused by excessive exceeding" as stipulated in the second paragraph of Article 114 of the Contract Law.
Beijing Higher People's Court's Answers to Some Difficult Problems in the Trial of Housing Lease Contract Disputes.
24. What should I do if the lessee unilaterally moves out of the leased house and claims to terminate the contract during the lease period, while the lessor insists on continuing to perform the contract?
The lessee's refusal to take over the house during the performance period of the lease contract, or unilaterally moving out of the leased house and notifying the lessor to take back the house, is an act that he indicates that he will no longer perform the lease contract. His refusal to take over or move out of the house does not meet the conditions for dissolution stipulated in the contract law and does not have the effect of unilaterally dissolving the contract. The lessor has the right to terminate the contract accordingly, unless otherwise stipulated in the contract. According to the court's explanation, if the lessor refuses to terminate the lease contract, considering that the lessee is unwilling to continue to perform the lease contract, the nature of the debt is not suitable for compulsory performance, and the purpose of the lease contract can no longer be realized, the court can directly decide to terminate the lease contract, and reasonably determine the specific time of contract termination according to the specific circumstances of the case, such as the time when the lessor takes back the house, the time when the parties file a lawsuit or the effective date of the judgment. If the lessee refuses to perform the lease contract and causes losses to the lessor, it shall be liable for breach of contract to compensate for the losses. As the observant party, the lessor also has the obligation to reduce the loss. The specific amount of loss is determined by the court according to the remaining lease term of the contract, whether the leased house is easy to be leased again, the difference between the lessor and other factors, the fault degree of the lessee and other factors. The rent agreed in a general contract is three to six months.
The lessor's claim to terminate the lease contract and recover the house due to its own reasons does not meet the statutory conditions for termination stipulated in the contract law, and the lessee's request to continue to perform the contract shall be supported, unless otherwise agreed in the contract.
25. How to determine the judgment standard of excessive liquidated damages in housing lease contract disputes?
If the defaulting party of a house lease contract claims that the amount of liquidated damages is too high, it shall be determined according to the provisions of Article 29 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the People's Republic of China (PRC) Contract Law (II), based on the actual losses caused by the breach of contract, and according to the principles of fairness, good faith, and by comprehensively measuring the degree of contract performance, the fault of the parties, the expected interests, the strength of the contracting status of the parties, and whether the standard contract or terms are applicable.
If the lessee claims that the amount of liquidated damages for overdue payment of rent is too high, and the lessor's actual loss cannot be determined through examination, the amount of liquidated damages shall be adjusted accordingly according to the fact that the unpaid rent does not exceed four times the benchmark interest rate of the People's Bank of China for the same period.
26. How to identify the actual losses arising from the termination of the house lease contract due to breach of contract?
If the lease contract is terminated due to the lessee's fundamental breach of contract, the lessor may support it if it requests the lessee to compensate for the actual losses such as rent during the idle period of the house, except as otherwise agreed in the contract. If the lessor's fundamental breach of contract leads to the termination of the house lease contract, and the lessee requests the lessor to compensate for the losses suffered during the turnover period of finding another alternative house, it can be supported, unless otherwise agreed in the contract. If the specific amount of the loss cannot be determined, it can be presumed as the rental loss during the idle period of the leased house or the turnover period of the replacement house, but the longest period shall generally not exceed six months.
Summary of practical experience
1. The high penalty agreed in the lease contract does not mean that it can be fully supported by the law, and the defaulting party does not need to be "intimidated" by the high penalty when the corresponding situation occurs. If the agreed liquidated damages are too high, the breaching party may request the court to reduce them appropriately. The court should take the actual loss of the observant party as the basis, comprehensively consider the performance of the contract, the degree of fault of the parties, expected interests and other comprehensive factors, and measure it according to the principle of fairness, honesty and credibility.
2. According to the relevant regulations and the author's experience in handling similar cases, the actual losses that the lessor can claim for compensation for the lessee's fundamental breach of contract generally include: rent-free losses (compensation for the lessor's rent-free losses according to the proportion during the non-performance of the contract by both parties), loss of vacant room fees, loss of agency fees for house subletting, etc. For example, assuming that the above rent-free period, housing vacancy loss fee and housing sublease agency fee total 2 million yuan, the people's court can generally increase it by 30% at most, and judge the defaulting party to bear the default liability of 2.6 million yuan at most, instead of judging the liquidated damages of 6.5438 million yuan as agreed in the contract. As far as the lessor is concerned, it has the burden of proof to prove that the above actual loss has indeed occurred.
3. Considering that in practice, losses such as loss of vacant houses and agency fees for re-renting houses usually exist objectively, but it is difficult to prove, the court may not accurately calculate the specific amount of each loss, but it will usually decide a reasonable fee standard to be borne by the lessee in combination with the specific circumstances of the case (the fault of both parties, the time limit and performance period agreed in the case lease contract, and the agreement of both parties on liquidated damages, etc.). ). In a case tried by a court in Beijing, if it is impossible to determine the specific amount of loss, it can be presumed to be the loss of rent during the period when the leased house is idle or looking for a replacement house, but the longest period shall generally not exceed six months.
court decision
According to the contract involved, the lease term is from February 9, 20 15 to February 8, 20 18. On 20 16 16 10 16, Baozekang Hospital delivered an application for leaseback to the plaintiff, clearly indicating that its board of directors had decided not to lease the house involved, and demanded that the unpaid rent and other related expenses be offset by the prepaid contract deposit and decoration deposit. As the defendant has made it clear that he will no longer perform his contractual obligations, the plaintiff agreed to this and the contract was terminated on the same day.
The plaintiff demanded that Baozekang Hospital be ordered to pay the liquidated damages for delayed payment of rent, which was based on 456 134.77 and paid at the rate of 20 15 1 14 to the date when the defendant actually paid, four times the loan interest rate of China People's Bank for the same period.
According to the relevant laws and regulations, if a party fails to perform its contractual obligations or fails to meet its contractual obligations, it shall be liable for breach of contract such as continuing to perform, taking remedial measures or compensating for losses. The parties may agree that when one party breaches the contract, it shall pay a certain amount of liquidated damages to the other party according to the situation of breach of contract, or it may be a calculation method of the amount of compensation for overdue breach of contract. If the amount of liquidated damages paid by the defaulting party to the house lease contract is too high, it shall be determined in accordance with the provisions of Article 29 of the Supreme People's Court's Several Interpretations on the Application of the People's Republic of China (PRC) Contract Law (II): based on the actual losses caused by the breach of contract, according to the principles of fairness, honesty and credit, combined with the degree of contract performance, factors such as the fault of the parties, expected interests, the strength of the contracting status of the parties, and whether the standard contract or terms are applicable should be comprehensively measured. If the lessee claims that the amount of liquidated damages for overdue payment of rent is too high, the amount of liquidated damages shall be adjusted accordingly according to the fact that the unpaid rent does not exceed four times the loan interest rate of the People's Bank of China for the same period.
In view of the high liquidated damages stipulated in the contract involved, the plaintiff has asked the defendant to adjust the amount of liquidated damages according to the standard of four times the loan interest rate of the People's Bank of China for the same period, which is in line with the law. However, considering that the plaintiff not only claimed liquidated damages from the defendant, but also asked the defendant to pay the rent loss during the vacant period of the house, the standard of liquidated damages was deducted to the standard of twice the loan interest rate of the People's Bank of China for the same period as appropriate.
Regarding the plaintiff's request to order Baozekang Hospital to compensate the plaintiff for the loss of vacant house for three months of 3 169090 yuan, the collegial panel held that if one party fails to perform the contractual obligations or the performance of the contract does not conform to the agreement, thus causing losses to the other party, the amount of damages should be equivalent to the losses caused by the breach of contract, including the benefits that can be obtained after the performance of the contract, but not more than the losses that the breaching party foresaw or should have foreseen when concluding the contract. If the lessee's fundamental breach of contract leads to the forced termination of the house lease contract, and the lessor requests the lessee to compensate for the actual losses such as rent during the vacant period of the house, it can support it, except as otherwise agreed in the contract. If the specific amount of the loss cannot be determined, it can be presumed as the rental loss during the idle period of the leased house or the turnover period of the replacement house, but the longest period shall generally not exceed six months.
According to the plaintiff's statement, the defendant Baozekang Hospital emptied the contents of the house involved on June 6, 2016+/KLOC-0. However, because Baozekang Hospital left some garbage in the house involved, the plaintiff cleaned it on June 6, 20 16+3 1 year, which should be regarded as the hospital cleaning it the next day. In view of the fact that the house involved was in good condition when it was returned and there was no obstacle to renting, the plaintiff could rent the house involved normally. Considering the certain influence on the housing rental market around the Spring Festival, our court presumed that the reasonable period for the plaintiff's house to be vacant was 20 16 15+00 to 20 1 6 March1. On this basis, the court ruled that the defendant should compensate the plaintiff for the rent loss during the idle period or during the period of looking for an alternative house158,454,000 yuan, 31690,943,000 yuan/quarter ÷3 months)+105636 ÷ 2.
Case source
Civil judgment of first instance of disputes over house lease contract between China Printing Materials Corporation and Qin Chu and Beijing Baozekang International Hospital Management Co., Ltd. [Beijing Xicheng District People's Court (20 16) J 0 102 Minchu No.9476].
Extended reading
Considering that in practice, the loss of vacant house fees, re-lease agency fees and other losses usually exist objectively, but it is difficult to prove, and the court may not be able to accurately calculate the specific amount of each loss, but usually it will decide a reasonable fee standard to be borne by the lessee in combination with the specific circumstances of the case (the fault of both parties, the time limit and performance period agreed in the lease contract, and the agreement of both parties on liquidated damages, etc.). ). In a case tried by a court in Beijing, if it is impossible to determine the specific amount of loss, it can be presumed to be the loss of rent during the period when the leased house is idle or looking for a replacement house, but the longest period shall generally not exceed six months.
Case 1: The first-instance civil judgment (20 15) on the dispute over Zhou Zhijia's lease contract heard by the Chaoyang District People's Court in Beijing holds that "a legally established contract is legally binding on the parties. In this case, the lease contract signed by the plaintiff and the defendant is the true intention of both parties, which does not violate the mandatory provisions of the law and is legal and effective. Both parties should fulfill their commitments. It is stipulated in the contract that "any party who terminates the contract in advance shall pay the other party a penalty of 6,543,800 yuan". Although the defendant claimed that both parties reached a consensus to terminate the contract, the situation in this case did not meet the provisions of this clause, but considering the defendant's willingness to terminate the contract in advance, the two parties did not change the agreement and signed a written agreement at the time of handover, and the plaintiff has not given up claiming liquidated damages from the other party so far, so the court considered that this clause should be applied and the plaintiff claimed that liquidated damages should be allowed by the court. Regarding the amount of liquidated damages, the law stipulates that if the agreed liquidated damages are excessively higher than the losses caused, the parties may request the people's court to reduce them appropriately. In this case, the defendant claimed that the liquidated damages were too high and applied to the court for discretionary relief. In this case, the court comprehensively considered the plaintiff's subsequent stay in the venue involved, the agreed time limit and performance period of the lease contract involved, and the agreement between the two parties on liquidated damages, and sentenced him to 70,000 yuan as appropriate in the principle of fairness, honesty and credibility. "
Case 2: The first-instance civil judgment (20 14) of Beijing Gaoyi Real Estate Development Co., Ltd. and Chu Weinan's house lease contract dispute heard by Beijing Chaoyang District People's Court held that "the plaintiff asked the defendant to pay the compensation equivalent to four months' rent for the termination of the contract of 3,735,324 yuan ... according to the contract, The defendant should pay the plaintiff's deposit and the first month's rent before 201219. Now the defendant admits that he has not paid the deposit, and the plaintiff who has met the contract has exercised his right to terminate the contract and demanded the defendant to pay the compensation for the termination of the contract. Therefore, the plaintiff's request for compensation from the defendant has factual and legal basis, and our court supports it. However, the calculation standard of liquidated damages advocated by plaintiff is too high. Based on the principle of fairness and good faith, the court decided to pay compensation according to the three-month rent standard of the house in combination with the lease term agreed by both parties, the time of contract termination, the fault degree of the defendant and the actual loss of the plaintiff. "
Case 3: The first-instance civil judgment (20 14) on the dispute over Shu Hao's lease contract heard by the Chaoyang District People's Court in Beijing holds that "regarding the loss of rent-free period and vacant loss, the original and defendant agreed in the contract that rent-free period is a rent concession for the plaintiff during the renovation period before operation, which is intended to transfer part of the available benefits, reduce the renovation cost of the defendant and urge the other party to complete the contract with him. According to the cooperation agreement, the cooperation period between the two parties was 60 months, but the defendant terminated the contract with the plaintiff only three months after the rent-free period on the grounds that it was impossible to continue to operate, resulting in the plaintiff not only transferring the interest on the rent-free period, but also unable to continue to obtain the rental income during the cooperation period. Therefore, the defendant should compensate the plaintiff for rent-free losses in proportion to the period when both parties failed to perform the contract. The two parties negotiated to terminate the contract on March 3rd, 20654381.Now the plaintiff claims to the defendant that the loss of the vacant house after the termination of the contract has no factual basis, and the printed page of the basic information of the company's industrial and commercial registration outside the case submitted by the plaintiff is not enough to prove whether the disputed house was vacant, so it is difficult for our court to support the plaintiff's request. "
Case 4: Beijing Chaoyang District People's Court heard the first-instance civil judgments of Zhongnong Langyi (Beijing) Science and Technology Development Co., Ltd. and Beijing Hongyu Fanglve Trading Co., Ltd. (20 18), and held that "in this case, the fact that the plaintiff and the defendant signed a house lease contract existed, and the rights and obligations of both parties were clear, and the defendant unilaterally terminated the contract, which really caused the contract to be unable to continue to be performed. Because the defendant did not provide evidence that he unilaterally terminated the contract due to the adjustment of national policies and the clean-up of the property rights of state organs, the defendant should bear the corresponding liability for breach of contract. The plaintiff did not provide sufficient evidence to prove the fact that he moved out of the house on February 28, 20 17. According to the handover list signed by the original defendant and the letter issued by the plaintiff to the defendant about the lease deposit for the use of the house, the plaintiff handed over the house to the defendant on 20 18129 October. Therefore, we support the plaintiff's claim for the defendant to refund the rent thereafter, but we do not support the claim for the refund of the previous rent. The defendant agreed to refund the plaintiff's house and telephone deposit, and our court had no objection. Regarding compensation, judging from the contractual agreement between the two parties, compensation is essentially liquidated damages. During the trial, the defendant raised the defense that the compensation standard was too high. Considering the plaintiff's losses, the performance of the contract, the fault degree of the parties and the expected benefits, our hospital adjusted the compensation amount according to the principle of fairness and good faith ... The defendant Beijing Hongyu Fanglve Trading Co., Ltd. returned the house deposit and telephone deposit of Zhongnong Langyi (Beijing) Science and Technology Development Co., Ltd. to the plaintiff within seven days after this judgment came into effect; Defendant Beijing Hongyu Fanglve Trading Co., Ltd. paid compensation of 42,000 yuan to plaintiff Zhongnong Langyi (Beijing) Technology Development Co., Ltd. within seven days after this judgment came into effect. "
Case 5: Beijing Huaan Real Estate Development Co., Ltd. v. Beijing Xishan Lihaitai Baiyun Catering Co., Ltd. and Beijing Xishan Lihaitai Catering Co., Ltd. (20 15) heard by Beijing No.2 Intermediate People's Court held that "finally, Nishi Company and Baiyun Company claimed that this part of the late payment fee advocated by Huaan Company was too high. For the defense opinion of requesting mitigation, because the nature of the late payment fee was liquidated damages, Based on the actual performance of the lease contract by both parties and the breach of the contract by both parties, our college will decide the amount of the overdue fine payable by Nishi Company and Baiyun Company according to the principles of fairness, honesty and credit.