Rule 44.1.Determination of Foreign Law
Effective July 1, 1974 · Last verified June 26, 2026
Full Text of Rule 44.1
Rule History
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, s. 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, s. 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, 162 N.E.2d 23, 24 (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, 190 N.E. 20, 22 (1934).
In New England Trust Co. v. Wood, 326 Mass. 239, 243, 98 N.E.2d 547, 549 (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, 193 N.E. 837, 838 (1935). See also Petition of Mazurowski, Petitioner, 331 Mass. 33, 3849, 116 N.E.2d 854, 857-858 (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, 117 N.E.2d 129, 132 (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.
Plain-English Summary
At common law the law of another jurisdiction was treated as a fact to be proved. Rule 44.1 changes that. A party who intends to raise an issue about the law of the United States, another state or territory, or a foreign country must give notice—in the pleadings or by other reasonable written notice—so the issue is not a surprise.
In deciding the foreign law, the court may consider any relevant material or source, including testimony, whether or not a party submitted it and whether or not it would be admissible under Rule 43. The court's determination is treated as a ruling on a question of law, which means it is decided by the judge and reviewed as a legal question on appeal.
Frequently Asked Questions
What must a party do to rely on the law of another state or country?
Give notice of the intent to raise the issue, either in the pleadings or by other reasonable written notice.
Is foreign law a question of fact or law in Massachusetts?
A question of law. The court may consider any relevant source, including testimony, and its determination is treated as a ruling on a question of law.