Massachusetts Civil Procedure Rule 44.1: Determination of Foreign Law
A party who intends to raise an issue concerning the law of the United States or of any state, territory or dependency thereof or of a foreign country shall give notice in his pleadings or other reasonable written notice. The court, in determining such law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under Rule 43. The court's determination shall be treated as a ruling on a question of law.
Effective July 1, 1974.
Reporter's Notes (1973) Rule 44.1 is similar to Federal Rule 44.1, which was added to the Federal Rules in 1966. The Reporters have extended the provisions of Federal Rule 44.1 to encompass the law of the United States or any other state, territory or dependency of the United States.
Rule 44.1 does not significantly alter pre-rule practice. G.L. c. 233, § 70 provides: "The courts shall take judicial notice of the law of the United States or of any state, territory or dependency thereof or of a foreign country whenever the same shall be material." While the word "shall" is used in G.L. c. 233, § 70, the court need not take judicial notice of the law of a foreign jurisdiction unless it is brought to the court's attention. Tsacoyeanes v. Canadian Pacific Railway Co., 339 Mass. 726, 728 (1959). This judicial requirement is not satisfied simply by mentioning the appropriate reference to foreign law. "Merely to direct attention to the law of a foreign country written in a foreign tongue does not make it a matter for judicial notice." Rodrigues v. Rodrigues, 286 Mass. 77, 83 (1934).
In New England Trust Co. v. Wood, 326 Mass. 239, 243 (1950) the court, while holding that it could take judicial notice of the Turkish law of descent and distribution, although not brought to its attention by the parties, refused to do so because it was not equipped to make its own investigation of Turkish law. It is unlikely that Rule 44.1 affects the philosophy of these holdings.
Rule 44.1 permits the court to consider "any relevant material or source"; this follows Massachusetts practice. The trial judge's attention may be directed to the law of another jurisdiction by oral testimony of a qualified witness as well as by citation of statutes and decisions. Eastern Offices, Inc. v. P.F. O'Keefe Advertising Agency, Inc., 289 Mass. 23, 26 (1935). See also Petition of Mazurowski, Petitioner, 331 Mass. 33, 38-49 (1954), which approved the Probate Court's (and the Supreme Judicial Court's) obtaining information from various United States government departments; Lenn v. Riche, 331 Mass. 104, 109 (1954) (French Code and commentaries).
The last sentence of Rule 44.1 is designed to make clear that the trial court's determination of foreign law is a matter of law (and therefore reversible if the appellate court disagrees) not a finding of fact, which may be reversed only if the appellate court decides that the trial court was "clearly erroneous." See Rule 52.