Facts
The plaintiff (appellant) and the defendant (respondent) concluded an agreement on 9 September/13 October 2013 designated as a 'Patent Security Agreement'. Under it, the plaintiff granted a loan of EUR 300'000.-- for the construction of a pilot plant for ballast water treatment. For repayment, Clause 4 (i) provided for conversion into company shares (a EUR 150'000.-- loan corresponds to a 1 % company share).
In August 2014, [C. GmbH] (later [C. AG] ) was registered in the Commercial Register of the Canton of Zug; the plaintiff served as chairman of the board of directors from 21 November 2014 to 11 November 2016. The plant was never fully developed, and marketing was not possible.
On 27 October 2014, the plaintiff transferred Fr. 300'000.-- to the defendant, and on 30 October 2014 Fr. 175'000.--. The plaintiff asserted that these were orally agreed loans; the defendant argued that they were an investment. In an email of 14 October 2014, the plaintiff had circulated a 'current overview regarding the [C.] investment', which referred to payments from the [A.] family of EUR 1.5 million as 'Up Front' and presented a participation model (2 million for 3 %, 5 million for 8 %, 10 million for 15 % in [C. AG] ).
On 4 February 2016, the plaintiff initiated debt enforcement proceedings for Fr. 475'000.--, and the defendant filed an objection (Rechtsvorschlag). By complaint of 12 October 2016 filed with the Cantonal Court of Appenzell Ausserrhoden, the plaintiff demanded payment of Fr. 475'000.--, plus 6 % interest since 27 November 2014, and the removal of the objection. The Cantonal Court awarded 5 % interest and upheld the claim; it relied in particular on an email from the defendant dated 1 August 2015, in which he confirmed receipt of two loans.
By decision of 2 April 2019, the Cantonal Court of Appeal of Appenzell Ausserrhoden set aside the first-instance judgment and dismissed the claim as well as the application for removal of the objection. It considered the loan allegation insufficiently substantiated (lacking details on the 'how' and 'when' of the agreement) and therefore took no evidence; unjust enrichment was also rejected.
The plaintiff filed an appeal in civil matters with the Federal Supreme Court, requesting the annulment of the decision of the Cantonal Court of Appeal and full approval of the claim, or alternatively remittal. The defendant requested dismissal with costs. The lower court did not file a response. The application for suspensive effect was rejected.
Considerations
The plaintiff has standing to appeal only to the extent that he was unsuccessful before the lower court; insofar as he claims 6 % interest beyond the request for 5 % interest, he lacks standing. The date from which interest runs in the operative part (27 November 2015 instead of 2014) was not challenged in the appeal proceedings.
Under the principle of party presentation, the parties bear the burden of alleging all facts establishing the claim (Art. 55 CPC). If the opposing party disputes the sufficiency of the submission, the burden of substantiation applies: the allegations must be broken down into individual facts and presented in such a way that evidence can be taken or counter-evidence offered regarding them. A general reference to documents is not sufficient.
Under Art. 312 CO, the lender undertakes to transfer ownership of money, and the borrower undertakes to repay it. The repayment obligation does not arise from the mere transfer of money, but from the promise to repay; exceptionally, the transfer of money alone may suffice if it cannot reasonably be explained as anything other than a loan (Art. 8 CC). Decisive is the normative consensus, which may be attributed in accordance with good faith even without an actual internal will. The lower court wrongly denied substantiation: the plaintiff had submitted auxiliary facts (liquidity shortage, urgency, the defendant's email of 1 August 2015, letter of 21 November 2014), which should have been assessed as a chain of indicia. Although an oral agreement was insufficiently substantiated, the lower court should have examined the chain of indicia.
The defendant's email of 1 August 2015, in which he confirmed receipt of two loans, is relevant under the case law on taking into account subsequent conduct of the parties within the framework of an actual consensus. Its authenticity was not timely disputed, and the defendant's objections (confused statements, failure to mention the amounts) are not convincing: the plaintiff…