Commercial law
Business transfers: contracts, debts and trade marks to check before signing
Buying a business means examining an organised set of assets and relationships, not just equipment and customers. Before agreeing the price, establish what transfers, which relationships continue and which liabilities require specific terms.
First step: define what is being acquired
A business transfer differs from a transfer of shares in the company operating it. The latter changes ownership of the company; the former transfers the organised business specified in the transaction. Transferring a branch also requires examination of its precise scope and organisation.
A generic asset list can leave essential issues unresolved. The buyer should know whether stock, machinery, software, domains, trade marks and commercial relationships are included, and which rights the seller actually holds. An asset used daily might belong to a third party and be licensed or leased.
Form of contract and the Italian Business Register
Article 2556 of the Italian Civil Code requires written evidence of contracts transferring ownership or enjoyment of businesses subject to registration, without prejudice to formalities required for particular assets or contract types. Filing in the Business Register requires a public deed or authenticated private document and the notary’s filing within thirty days.
Preparation should begin before the operational handover date. Documents, authorisations and conditions of effectiveness must be coordinated, specifying delivery, payment and assumption of management.
Do all contracts continue in the same way?
Under Article 2558, unless otherwise agreed, the buyer takes over contracts made for the business that are not personal in nature. A third-party contracting party may withdraw for good cause within three months of learning of the transfer, without prejudice to the seller’s liability.
This rule does not replace examining individual relationships and special rules. Leases, employment, authorisations and specially regulated contracts require dedicated checks. For employees, Article 2112 and any applicable transaction procedures must be considered.
A contract schedule should record counterparties, duration, expiry, financial terms, transfer clauses and required steps. This helps identify relationships essential to business continuity in good time.
Debts: distinguish internal agreements from creditors’ rights
Article 2560 provides that the seller is not released from earlier business debts without creditors’ consent. The buyer of a commercial business is also liable when debts appear in the mandatory accounting books. This must be considered alongside special rules, including employment and tax law.
Stating that all debts remain with the seller does not alone exclude third parties’ statutory rights. Internal agreements may govern guarantees and reimbursements, but their effect between the parties differs from enforceability against creditors.
Document checks should include accounts, litigation, security, financing and tax and social security positions. Missing documents must be treated as unresolved matters, not as evidence that all is in order.
Trade marks, software and digital presence
The name under which the business is known may be central to its price. Check trade mark ownership, renewals, licences, encumbrances and disputes. Domain ownership does not prove trade mark ownership; possessing a password does not establish rights to content or a service’s transferability.
The contract should identify intangible assets precisely and provide for the steps needed to transfer them. Online businesses also need an operational plan for accounts, providers and continuity. Personal data requires specific assessment of applicable legal conditions and duties.
What to prepare before signing
A useful file includes an inventory, register extracts, key contracts, trade mark registrations, accounts and litigation details. Issues may be addressed through conditions, warranties, cooperation obligations and payment mechanisms aligned with identified risks.
For example, if value depends on a trade mark personally owned by the founder, this must be expressly resolved before assuming its availability. Coordinating legal, accounting, tax and notarial analysis grounds the transaction in actual documents and the parties’ needs.
Sources and references
Informational article prepared with assistance from artificial intelligence tools. It does not replace assessment of the specific case. Legislation and guidance must be checked against the relevant date and facts.
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