1) A "KORBAN" FOR A "SAFEK SHIFCHAH CHARUFAH"
QUESTION: The Gemara says that if a man may bring the Asham Vadai for the sin of Shifchah Charufah without a Yedi'ah (that is, he does not know for sure that he sinned), then a Yedi'ah is not Mechalek between five sins with a Shifchah Charufah. (Accordingly, even though he found out that he sinned immediately after each time he committed the act, the sins are all considered to have been done b'He'elem Echad and he is Chayav to bring only one Korban.) The logic for this ruling is that since a Yedi'ah is not necessary for the Asham Vadai to be effective, Yedi'os are not significant as far as this Korban is concerned, and Yedi'os do not serve to divide between two such sins. Therefore, one Korban suffices for all five sins that he committed with the Shifchah Charufah.
(This can be understood logically as follows. A Yedi'ah serves as a separation between two sins when the Chiyuv Korban takes effect only as a result of the Yedi'ah. When the Chiyuv Korban takes effect even without the Yedi'ah, such as in the case of Shifchah Charufah, the Yedi'ah is rendered meaningless. One might ask that since the sin itself makes the Chiyuv Korban take effect, the sin itself should differentiate it from a second sin. The answer is that an act of a sin alone can never separate one act from a later act, even if it creates a Chiyuv Korban.)
The Rishonim ask that even if we say that one does not need definite knowledge that he sinned with a Shifchah Charufah in order to bring a Korban, he still must have at least a doubt that he sinned. If he has a doubt whether or not he is obligated to bring the Korban, he may bring the Korban conditionally ("Al Tenai..."), as Rashi explains earlier (end of 71b, DH l'Man d'Amar Asham Vadai).
How can one bring a Korban conditionally for the sin of Shifchah Charufah when he is in doubt if he sinned? In the case of Shifchah Charufah, he cannot make a Tenai (condition)! (In the case of Me'ilah, cited by Rashi earlier (loc cit.), one can make a Tenai, because if he did sin with Me'ilah, he must bring an Asham Vadai, and even if he is not sure that he sinned, he must still bring an Asham Taluy because of his doubt. However, in the case of Shifchah Charufah one does not bring any Korban for a doubtful sin (since it is not punishable with Kares when done intentionally)! One may not make a condition that if he sinned, the Korban is an Asham Vadai, and if he did not sin, it is a Nedavah, because an Asham and a Nedavah are two completely different types of Korbanos with different Halachos.) One needs definite knowledge that he sinned with a Shifchah Charufah in order to be Chayav to bring a Korban. (The only time when Yedi'ah is not necessary is when the Korban may be brought Al Tenai. In this case, though, it cannot be brought Al Tenai, and thus a Yedi'ah is necessary in order to be able to bring the Korban.)
(a) TOSFOS (DH Ba'al) answers that even though it is true that one may not designate an animal as a Korban with the stipulation that it should be either an Asham Shifchah Charufah (if he sinned) or a Nedavah (if he did not sin), nevertheless if one does make such a Tenai it is effective b'Di'eved. Therefore, it can be said that a Yedi'ah is not necessary in order to bring the Korban.
(b) The RAMBAN explains that if two men lived with two women, one of whom was a Shifchah Charufah, but it was not known which one, the two men may make a Tenai and bring a Korban Asham Al Tenai, since one of the two is certainly obligated to bring the Korban. That case shows that a Yedi'ah is not necessary to be Chayav to bring the Korban Asham, and therefore a Yedi'ah is also not Mechalek between sins.
(c) REBBI AKIVA EIGER in Gilyon ha'Shas explains that it is true that after the first doubtful sin with a Shifchah Charufah that he commits, he may not bring a Korban because he needs a Yedi'ah Vadai (that is, it is not possible to bring a Korban Asham for Shifchah Charufah conditionally, as we stated in our question). However, once he finds out for sure that he sinned the first time, from then on he does not need a Yedi'ah for any subsequent sins with a Shifchah Charufah in order to bring a Korban for those sins. Once he is Chayav to bring that first Korban, every subsequent act of Be'ilah does not need a Yedi'ah, because when he later brings the Korban for the first sin, it covers all the subsequent Be'ilos about which he has no definite knowledge.
This seems to be a straightforward solution. It could be that the Rishonim disagreed on this point and understood that if a person designates an animal to be brought as an Asham specifically for one act of Be'ilah, it cannot cover any other Be'ilah which he did not have in mind at the time that he designated the Korban.
(d) It seems that there is an obvious answer to this question. It is true that a person cannot designate a Korban for a doubtful sin of Shifchah Charufah through a Tenai, and he may designate a Korban only once he knows for certain that he sinned. However, if a person has absolutely no knowledge that he sinned with a Shifchah Charufah, if he designates an animal as a Korban and says, "If I ever happened to have sinned with a Shifchah Charufah, then this animal is hereby a Korban Asham," it will be an Asham when he finds out that he sinned. This shows that Yed'iah is not necessary for the Korban to be effective, and thus it will not be Mechalek between sins!
The Rishonim apparently rejected this answer because there is no such thing as designating a Korban for a sin which one does not know that he committed. One may designate a Korban only for something that he knows about (or at least something which he is in doubt about). (M. KORNFELD)
(See Chart #14 for a detailed description of the argument between Rashi and Tosfos as to what is considered Mis'asek.)