MBE SM Outline
MBE SM Outline
The following subject matter outline indicates the MBE’s scope of coverage.
The outline is not intended to list every aspect of a topic mentioned. Although
the test items for each MBE are developed from these categories, each topic is
not necessarily tested on each examination.
Civil Procedure
NOTE: Examinees are to assume the application of (1) the Federal Rules of Civil Procedure as currently in effect and (2) the sections
of Title 28 of the U.S. Code pertaining to trial and appellate jurisdiction, venue, and transfer. Approximately two-thirds of the Civil
Procedure questions on the MBE will be based on categories I, III, and V, and approximately one-third will be based on the remaining
categories—II, IV, VI, and VII.
Constitutional Law
NOTE: The terms “Constitution,” “constitutional,” and “unconstitutional” refer to the federal Constitution unless indicated otherwise.
Approximately half of the Constitutional Law questions on the MBE will be based on category IV, and approximately half will be based
on the remaining categories—I, II, and III.
NOTE: Examinees are to assume that the Official Text of Articles 1 and 2 of the Uniform Commercial Code has been adopted and
is in effect. Approximately half of the Contracts questions on the MBE will be based on categories I and IV, and approximately half
will be based on the remaining categories—II, III, V, and VI. Approximately one-fourth of the Contracts questions on the MBE will
be based on the Official Text of Articles 1 and 2 of the Uniform Commercial Code.
I. Formation of contracts
A. Mutual assent (including offer and acceptance, and unilateral, bilateral, and implied-in-fact contracts)
B. Indefiniteness and absence of terms
C. Consideration (bargained-for exchange)
D. Obligations enforceable without a bargained-for exchange (including reliance and restitution)
E. Modification of contracts
II. Defenses to enforceability
A. Incapacity to contract
B. Duress and undue influence
C. Mistake and misunderstanding
D. Fraud, misrepresentation, and nondisclosure
E. Illegality, unconscionability, and public policy
F. Statute of frauds
III. Contract content and meaning
A. Parol evidence
B. Interpretation
C. Omitted and implied terms
IV. Performance, breach, and discharge
A. Conditions (express and constructive)
B. Excuse of conditions
C. Breach (including material and partial breach, and anticipatory repudiation)
D. Obligations of good faith and fair dealing
E. Express and implied warranties in sale-of-goods contracts
F. Other performance matters (including cure, identification, notice, and risk of loss)
G. Impossibility, impracticability, and frustration of purpose
H. Discharge of duties (including accord and satisfaction, substituted contract, novation, rescission, and release)
V. Remedies
A. Expectation interest (including direct, incidental, and consequential damages)
B. Causation, certainty, and foreseeability
C. Liquidated damages and penalties, and limitation of remedies
D. Avoidable consequences and mitigation of damages
E. Rescission and reformation
F. Specific performance and injunction
G. Reliance and restitution interests
H. Remedial rights of breaching parties
VI. Third-party rights
A. Third-party beneficiaries
B. Assignment of rights and delegation of duties
NOTE: Approximately half of the Criminal Law and Procedure questions on the MBE will be based on category V, and approximately
half will be based on the remaining categories—I, II, III, and IV.
I. Homicide
A. Intended killings
1. Premeditation, deliberation
2. Provocation
B. Unintended killings
1. Intent to injure
2. Reckless and negligent killings
3. Felony murder
4. Misdemeanor manslaughter
Evidence
NOTE: All Evidence questions should be answered according to the Federal Rules of Evidence, as currently in effect. Approximately
one-quarter of the Evidence questions on the MBE will be based on category I, one-third on category II, one-quarter on category V,
and the remainder on categories III and IV.
I. Presentation of evidence
A. Introduction of evidence
1. Requirement of personal knowledge
2. Refreshing recollection
3. Objections and offers of proof
4. Lay opinions
5. Competency of witnesses
6. Judicial notice
7. Roles of judge and jury
8. Limited admissibility
B. Presumptions
C. Mode and order
1. Control by court
2. Scope of examination
3. Form of questions
4. Exclusion of witnesses
NOTE: Approximately one-fifth of the Real Property questions on the MBE will be based on each of the categories I through V.
C. Marketability of title
D. Equitable conversion (including risk of loss)
E. Options and rights of first refusal
F. Fitness and suitability
G. Merger
IV. Mortgages/security devices
A. Types of security devices
1. Mortgages (including deeds of trust)
a. In general
b. Purchase money mortgages
c. Future advance mortgages
2. Installment land contracts
3. Absolute deeds as security
B. Security relationships
1. Necessity and nature of obligation
2. Mortgage theories: title, lien, and intermediate
3. Rights and duties prior to foreclosure
4. Right to redeem and clogging the equity of redemption
C. Transfers
1. By mortgagor
a. Assumption and transfer subject to
b. Rights and obligations
c. Application of subrogation and suretyship principles
d. Restrictions on transfer (including due-on-sale clauses)
2. By mortgagee
D. Discharge of the mortgage
1. Payment (including prepayment)
2. Deed in lieu of foreclosure
E. Foreclosure
1. Types
2. Acceleration
3. Parties to the proceeding
4. Deficiency and surplus
5. Redemption after foreclosure
V. Titles
A. Adverse possession
B. Transfer by deed
1. Requirements for deed
2. Types of deeds (including covenants for title)
3. Drafting, review, and negotiation of closing documents
4. Persons authorized to execute documents
C. Transfer by operation of law and by will
1. In general
2. Ademption
3. Exoneration
4. Lapse
D. Title assurance systems
1. Recording acts
a. Types
b. Indexes
c. Chain of title
d. Hidden risks (e.g., undelivered or forged deed)
2. Title insurance
E. Special problems (including estoppel by deed and judgment and tax liens)
NOTE: Examinees are to assume that survival actions and claims for wrongful death are available. Joint and several liability, with
pure comparative negligence, is the relevant rule unless otherwise indicated. Approximately half of the Torts questions on the MBE
will be based on category II, and approximately half will be based on the remaining categories—I, III, and IV.
I. Intentional torts
A. Harms to the person, such as assault, battery, false imprisonment, and infliction of mental distress; and harms to
property interests, such as trespass to land and chattels, and conversion
B. Defenses to claims for physical harms
1. Consent
2. Privileges and immunities: protection of self and others; protection of property interests; parental discipline;
protection of public interests; necessity; incomplete privilege
II. Negligence
A. The duty question, including failure to act, unforeseeable plaintiffs, and obligations to control the conduct of third parties
B. The standard of care
1. The reasonably prudent person: including children, physically and mentally impaired individuals, professional
people, and other special classes
2. Rules of conduct derived from statutes and custom
C. Problems relating to proof of fault, including res ipsa loquitur
D. Problems relating to causation
1. But for and substantial causes
2. Harms traceable to multiple causes
3. Questions of apportionment of responsibility among multiple tortfeasors, including joint and several liability
E. Limitations on liability and special rules of liability
1. Problems relating to “remote” or “unforeseeable” causes, “legal” or “proximate” cause, and “superseding” causes
2. Claims against owners and occupiers of land
3. Claims for mental distress not arising from physical harm; other intangible injuries
4. Claims for pure economic loss
F. Liability for acts of others
1. Employees and other agents
2. Independent contractors and nondelegable duties
G. Defenses
1. Contributory fault, including common law contributory negligence and last clear chance, and the various forms of
comparative negligence
2. Assumption of risk
III. Strict liability and products liability: common law strict liability, including claims arising from abnormally dangerous activ-
ities, and defenses to such claims; claims against manufacturers and other defendants arising out of the manufacture and
distribution of products, and defenses to such claims
IV. Other torts
A. Claims based on nuisance, and defenses
B. Claims based on defamation and invasion of privacy, defenses, and constitutional limitations
C. Claims based on misrepresentations, and defenses
D. Claims based on intentional interference with business relations, and defenses
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2018 MBE Subject Matter Outline Copyright © 2019 by the National Conference of Bar Examiners. All rights reserved.
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