## Facts

- A Pennsylvania resident bought three gems in Rio de Janeiro from a Brazilian jewelry company for $30,467.43.
- The buyer relied on an English-language flyer stating that every sale carried a one-year guarantee for “refund, credit or exchange” either in Brazil or “in your own country,” and directing customers to a New York location for help and service.
- The buyer alleged that a company vice president orally assured him the gems could be returned for a complete refund in New York.
- Within a month, the buyer tendered the gems at the New York store and requested a refund; the refund was refused.
- The buyer sued in federal court seeking specific performance of the alleged refund promise.
- The seller moved to dismiss, arguing Brazilian law governed and would bar proof of the oral promise for a high-value contract through testimonial evidence and would disqualify interested witnesses.

## Issues

1. Under New York choice-of-law rules, whether New York or Brazilian law governs the enforceability and proof of an alleged oral refund promise tied to performance in New York.
2. Whether Brazilian evidentiary rules limiting proof by testimony and disqualifying interested witnesses should be applied in a New York federal diversity action to defeat the claim at the pleading stage.

## Decision

- The court applied New York choice-of-law rules and concluded New York law governed the disputed refund obligation.
- The court treated the invoked Brazilian provisions as primarily evidentiary/procedural and declined to import them to bar proof in the New York forum.
- The court held a New York court would not allow a seller to promise a refund performable in New York and then avoid that obligation by invoking Brazilian evidentiary restrictions.
- The motion to dismiss was denied.

## Legal Principles

- A federal court sitting in diversity applies the forum state’s choice-of-law rules.
- Under New York’s interest-analysis/center-of-gravity approach, the governing law turns on which jurisdiction has the greatest interest in the specific issue presented.
- For an alleged promise whose contemplated performance is in New York, New York has a strong interest in regulating and enforcing that obligation.
- Foreign evidentiary or witness-competency restrictions are generally disfavored for application in a New York forum, particularly where they would functionally preclude a claim and conflict with New York policy permitting interested witnesses to testify.

## Conclusion

The court denied dismissal because New York’s interests in enforcing a refund obligation performable in New York, and its evidentiary policies, outweighed Brazil’s interest in applying its testimonial-proof and witness-disqualification rules to litigation in a New York forum.


Kristinus v. H. Stern Com. e Ind. S.A., 463 F. Supp. 1263 (S.D.N.Y. 1979)