This page is education, not legal advice. Hire an experienced business attorney for any acquisition. But knowing what legal diligence covers makes you a better client — and a buyer who asks better questions.
Why structure matters first
Whether you buy assets or stock changes what you inherit. In a stock or membership interest purchase, the entity — with its history and liabilities — comes with you. In an asset purchase, you generally choose which assets and liabilities to take, though some obligations can still follow the business. See asset sale vs stock sale.
The legal diligence checklist
Entity and ownership
- Articles, operating agreements or bylaws, and amendments
- Ownership records and any options or rights to buy ownership
- Good standing with the Secretary of State
- Required consents from owners or boards to sell
Material contracts
- Customer and supplier contracts
- Assignment and change-of-control clauses — can the contract transfer, or does the other party need to consent?
- Exclusivity, non-compete or most-favored-pricing terms
- Termination rights and notice periods
- Warranties and service obligations
Real estate and leases
- Lease terms, remaining term, renewal options and assignment rights
- Landlord consent requirements
- Property condition and zoning for real estate being purchased
- Environmental questions where relevant
Litigation and claims
- Pending or threatened lawsuits
- Past settlements, regulatory actions and customer complaints
- Warranty claims and product issues
Licenses and permits
- Business licenses, professional and trade licenses, permits
- Whether they transfer or must be reissued — some are tied to a specific person
- Inspections and compliance history
Employment
- Employee list, roles and pay structure
- Contractor classifications
- Employment agreements, handbooks and policies
- Benefit plans and obligations
- Wage-and-hour compliance
- Any pending claims
Intellectual property and technology
- Trademarks, trade names, domains, software licenses and websites
- Who owns custom software, content and customer data
- Data privacy obligations
Debts, liens and taxes
- UCC lien searches
- Loan documents and payoff requirements
- Tax compliance and any notices
- State-specific successor liability rules for unpaid taxes
Insurance
- Current policies, coverage and claims history
- Whether coverage protects against pre-closing events
Non-competes and restrictive covenants
Buyers usually want the seller to agree not to compete after the sale. The FTC’s attempted nationwide non-compete ban was set aside in court, and the FTC later dropped its appeal, so state law continues to govern. Non-competes tied to the sale of a business are generally treated more favorably than employee non-competes, but they must still be reasonable in scope, geography and duration. See non-compete when selling a business.
South Carolina considerations
- Unpaid state taxes. Under SC Code §12-54-124, a seller’s unpaid state taxes can attach to the business assets a buyer acquires unless the buyer obtains a certificate of compliance from the SC Department of Revenue within the required window before closing. Discuss this with your attorney early.
- Entity records through the SC Secretary of State.
- Local business licenses at the city or county level.
- Real estate in the deal raises title, survey and licensing considerations.
See South Carolina acquisition checklist.
Turning findings into protections
Your attorney turns legal findings into purchase agreement terms: representations and warranties from the seller, indemnification, escrows or holdbacks, specific closing conditions and covenants. See purchase agreement.
For sellers
Organize these documents before you go to market. Fix what you can: renew licenses, clean up contractor classifications, resolve disputes, get leases extended. Each item you clean up reduces the risk a buyer sees. See prepare a business for sale.
Practical tips for buyers
- Start legal diligence early on the deal-breakers: key contracts, leases and licenses.
- Ask your attorney for a short memo of the top risks, not just a pile of document reviews.
- Don’t let legal diligence become a replacement for understanding the business. Paper tells you obligations; people tell you how the business really runs.
Timing legal work with the rest of the deal
Legal diligence and purchase agreement drafting usually run in parallel with financial work and the lender’s process. Don’t wait for financial diligence to finish before starting on contracts, leases and licenses — those often take longest to resolve, because they depend on third parties like landlords, licensing agencies and key customers. Ask your attorney for a list of every third-party consent the deal needs and start those conversations as soon as confidentiality allows.
Next steps
Read operational due diligence and red flags when buying a business. For a South Carolina deal, talk to Ben about acquisitions.
Questions people ask
What does legal due diligence cover in an acquisition?
Entity and ownership records, material contracts and whether they can be assigned, leases, litigation and claims, licenses and permits, employment matters, intellectual property, liens and debts, insurance, regulatory compliance and taxes.
Do I need an attorney for business due diligence?
Yes. A business attorney experienced in acquisitions should review legal documents, advise on risks, and draft or negotiate the purchase agreement. This guide is educational and not legal advice.