ABSTRACT
According to Point Y.4 of both offers, with the acceptance of the offer Defendant was to send a finalised and unconditional order for the spare engines indicated in the offers. In case of the offer for the Airbus scenario, the indicated jet engine system includes the engine, other parts and the gondola as well, while ‘engine’ means the motor only, therefore the price of the jet engine system is not identical with the price of the engine (motor). The offer contained the price of neither jet engine system. In the appeal proceedings, based on the Defendant’s appeal, a declaration was to be made also about whether, interpreting the Parties’ declarations on the basis of Paragraph 1, Section 8 of the Agreement, Plaintiff’s December 14, 1990 offers comply with the conditions stipulated in Paragraph 1, section 14 of the Agreement and whether Defendant’s December 21, 1990 declaration qualifies as an acceptance. According to Paragraph 1, Section 14 of the Agreement a proposal to enter into a contract, addressed to one or more persons, qualifies as a bid if it is properly defined and indicates the bidder’s intention to regard itself to be under obligation in case of acceptance. A bid is properly defined if it indicates the product, expressly or in essence defines the quantity and the price, or contains directions as to how they can be defined. This means that the Agreement regards the definition of the subject of the service (product), its quantity and its price to be an essential element of a bid. It can be determined on the basis of the given evidence and the Parties’ declarations, that Plaintiff made two parallel offers for the same deal on December 14, 1990, depending on Defendant’s choice of the Boeing or the Airbus aircraft. In case Boeing was selected, within the respective offer two separate engines (PW 4056 and PW 4060) were indicated. This offer did not contain the base price of the PW 4060 engine. In case Airbus was selected, within the respective offer two different jet engine systems (PW 4152 and PW 4156), belonging to the same series, and two different spare engines (PW 4152 and PW 4156/A) were indicated. The base price of the jet engine system is not included in the offer, only that of the spare engines, in spite of the fact that these two elements are not identical either technically or in respect of price. In case there is no base price, value stability calculations have no importance. The price cannot be determined according to Section 55 of the Agreement either, as jet engine systems have no market prices. The Court of Appeals did not accept Plaintiff’s position, according to which it did not have to make an offer in respect of the jet engine systems’ price, for these would have been billed to the aircraft manufacturer, who includes it in the price of the airplane. For according to the offers (Point Y.2) the engines, the jet engine systems and the spare engines would have been purchased by Defendant from Plaintiff, therefore Plaintiff would have established a contractual relationship with Defendant, as the buyer. That is, the two offers, involved in the suit, related not only to the sales of the spare engines, but also to the engines to be built in and the jet engine systems. Therefore, according to Section 14 of the Agreement, Plaintiff would have had to provide the price of all the products, engines and jet engine systems in its parallel or alternative offer involved in the suit, or the directions for the determination of the price thereof, to the Defendant. It clearly follows from the above, that none of Plaintiff’s offer, neither the one for the Boeing aircraft’s engines, nor the one for the Airbus aircraft’s jet engine systems, complied with the requirements stipulated in Paragraph 1, Section 14 of the Agreement, for it did not indicate the price of the services or it could not have been determined. Plaintiff’s parallel and alternative contractual offers should be interpreted, according to the noticeable intention of the offer’s wording and following common sense, so, that Plaintiff wished to provide an opportunity to Defendant to select one of the engine types defined in the offer at the time of the acceptance of the offer.
