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Chumash  Rambam

(5750) Rashi (Deut. 4:41): "Then Moses decided to separate": The reason that Moshe hastened to separate
the three cities of Refuge on the side of the Jordan "even though they were not to serve as cities of refuge
until those of the land of Canaan would be separated";

Explanation of the lengthiness of Rambam in Hilchot Rotseah (8:1-3). And the debate of Rashi and Rambam in the essence of Moshe's action in separating the three cities of Refuge on the side of the Jordan.; Explanation of their debate according to Pnimiyut


41. At that time, Moshe separated three cities on the east side of the Jordan where the sun rises,

42. so that at a later time, when the cities would become active a murderer might flee there. If a person murders his fellow unintentionally, provided he did not hate him yesterday or the day before, he may flee to one of these cities and live:

--Devarim 4:41-42

Classic Questions
Why did Moshe separate three Cities of Refuge? (v. 41)

Rashi: Fearfully, Moshe set his heart to the matter of setting them aside. Even though they were not to serve as Cities of Refuge until those of the land of Cana'an would be set aside, Moshe said, "Since it is possible to do a mitzvah, I will do it."

Rambam: The three cities in the Transjordan did not serve as a haven until the three in the land of Cana'an were set aside.

Why then did Moshe set them aside? He said, "Since a mitzvah has come to my hand, I will do it" (Laws of a Murderer and the Protection of Life 8:3).

The Rebbe's Teachings
Moshe's Three Cities (v. 41)

The Cities of Refuge only became a haven for accidental murderers upon the Jewish people's entry into the Land of Cana'an (as Rashi stresses here; see Bamidbar 35:10). Thus, so long as Moshe was hopeful that he would enter the Land, there was no need for him to begin setting aside these cities, as he would have expected to fulfill this mitzvah only when it would become relevant—i.e., after entering the Land of Cana'an.

At the beginning of our parsha, however, Moshe was told, "You will not cross this River Jordan" (3:27), which meant that Moshe would not be able to carry out the mitzvah of setting aside Cities of Refuge at its proper time. Notwithstanding this setback, the Torah informs us that Moshe set aside three cities—as Rashi and Rambam explain, this may have appeared premature, but it was a form of participation in the mitzvah which would later come into force.

Nevertheless, Rashi stresses that Moshe did so "fearfully," since:

The mitzvah of setting aside the cities had not yet begun, so Moshe feared that his actions were premature; and,

This mitzvah might be intrinsically connected with entering the Land of Cana'an, and since G‑d had decreed that Moshe was not permitted to enter the Land, Moshe feared that this mitzvah was not meant for him to observe.
However, we are still left with the question: What did Moshe accomplish by performing a mitzvah before its time?

The Explanation

Moshe's early separation of Cities of Refuge in the Transjordan could be approached in one of two ways:

It was merely a non-halachic preparation for the mitzvah which was to be performed at a later date; or

Moshe performed the actual halachic designation of these cities. The cities were then "activated" as functional Cities of Refuge when the mitzvah became applicable, when the other cities were designated in the Land of Cana'an.1
A practical difference between these two approaches would be whether the Transjordanian cities would have to be re-designated (by Yehoshua) after the three cities had been designated in the Land of Cana'an. According to the first approach, Moshe's designation was not halachically effective, so the cities would indeed have to be re-designated; but according to the second approach, this will have already taken place.

It appears that Rashi and Rambam differ over this matter:

Rashi stresses that Moshe said, "Since it is possible to do a mitzvah, I will do it," suggesting that Moshe actually observed the mitzvah (halachic requirement) of separating the cities—i.e., the second approach above.

Rambam, however, writes that Moshe only said, "Since a mitzvah has come to my hand, I will do it." This suggests that it was not in fact possible to observe the mitzvah itself, and it is only that "the mitzvah has come to my hand"; i.e., Moshe could participate in some way with the mitzvah, but his action had no significance from a halachic point of view.

From https://www.chabad.org/parshah/article_cdo/aid/704619/jewish/Moshes-Cities-of-Refuge.htm
(Based on Likutei Sichos vol. 39, p. 14ff.)

Or perhaps it could be argued that when the three cities were designated in the Land of Cana'an, the three Transjordanian cities retroactively attained the status of fully-fledged Cities of Refuge since the time when Moshe designated them (See Tzafnas Pane'ach al Hatorah to 3:25).


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